When centrist Supreme Court Justice Anthony Kennedy announced Wednesday that he would be retiring at the end of July, bestowing upon Donald Trump the opportunity to appoint his successor and shift the court decisively to the right, reaction among liberals was apocalyptic — to put it mildly.
“NOOOOOOOOOOOOOOOOOOOOOOOOO,” tweeted one.
“Just screaming ‘F***’ as loud as i can into the void,” added another.
Talk on social media quickly turned to all the laws that would likely be overturned — Roe v. Wade, affirmative action, LGBTQ protections, restrictions on capital punishment, and so on — if and when Trump tips the balance of a court that has long been evenly divided among conservatives and liberals, with Kennedy often serving as the deciding vote, and installs a solid 5-4 conservative majority instead.
Then Democrats started to wonder. Under Sen. Majority Leader Mitch McConnell, Republicans infamously refused to even consider Merrick Garland, President Barack Obama’s final nominee, to fill the seat vacated by the unexpected death of conservative Justice Antonin Scalia 269 days before the 2016 election. Kennedy has announced his retirement 132 days before the 2018 election.
Could Dems therefore take a page from the GOP playbook and block whomever Trump appoints, claiming, as McConnell did at the time, that “the American people” deserve to have “a voice in this vacancy” when they cast their ballots in November?
Technically, the answer is yes. But because of a momentous GOP rule change, the process would be much more difficult than it was as recently as 2016 — so difficult, in fact, that Democrats may conclude it isn’t worth the political cost.
In 1917, the Senate replaced its long-standing tradition of “talking filibusters” with a two-thirds supermajority requirement: as long as 67 senators supported a particular measure or nomination, they could cut off debate and proceed to a vote — meaning that 34 senators could block it. In 1975, the Senate lowered its supermajority threshold to 60; now 41 senators were required for a filibuster.
That rule still stands for most legislation, but in 2013, Democrats — who were frustrated by Republican efforts to stonewall Obama’s nominees to executive branch positions and lower court judgeships — eliminated the need for 60 votes on such nominations, saying that a simple, 51-vote majority would suffice. Significantly, they left the 60-vote requirement in place for Supreme Court nominations.
Then, in 2014, the GOP won control of the Senate; in 2016, they won the White House. Ten days after taking office, President Trump nominated Neil Gorsuch to fill Scalia’s still vacant seat, and when Democrats tried to filibuster in April 2017, McConnell invoked the so-called nuclear option, abolishing the 60-vote requirement for Supreme Court nominations as well. Gorsuch was confirmed three days later, 54-45.
Currently, Democrats control 49 Senate seats — two short of the simple majority they would need to filibuster a Trump nominee. So how could they “technically” block the president’s pick? And even with all the outrage on the left, why are they still unlikely to do it?
Earlier this month, University of Miami political scientist Gregory Koger, a specialist in filibustering and legislative obstructionism, explained on Vox.com that, according to Article 1, Section 5 of the U.S. Constitution, “a majority … shall constitute a quorum to do business” in the Senate — meaning that Democrats can basically shut the place down by refusing to vote on anything.
With only the barest 51-vote majority — and one of their own, Arizona Sen. John McCain, on extended leave in Arizona as he grapples with what is likely to be terminal brain cancer — Republicans would have difficultly mustering a quorum without at least some Democratic help. “In the month of June, there have been an average of 1.8 Republican absences across 18 roll call votes,” Koger wrote, “so even if McCain returned to the Senate, the majority would struggle to consistently provide a floor majority.” If McCain doesn’t return, and all 49 Democrats refuse to participate, the 50 Republican senators left in Washington would fall one short of a quorum. (The Senate precedents on quorums do not mention whether Vice President Mike Pence could contribute a 51st vote.)
In that case, “the Senate can do nothing,” Koger concluded. “No bill can pass, no amendment can be decided on, no nominations can get approved.” The Senate would screech to a halt for lack of a quorum — and Democrats could conceivably delay a confirmation vote until a new Senate, perhaps with a narrow Democratic majority, is seated next January.
Asked to confirm that Democrats could use the quorum rule to block Trump’s Supreme Court nominee indefinitely, Koger tells Yahoo News the answer is “technically yes,” assuming that the word “majority” in the Constitution means “51 votes, not 50” and that the vice president can’t “vote to make a majority.”
The fact that Democrats can shut down the Senate, however, doesn’t mean they will. “This would be a confrontational tactic,” Koger explained. “Confrontational” is probably too gentle a word for it. Obstructing a president’s Supreme Court pick by completely shutting down the Senate would require political winds that were blowing strongly in Senate Democrats’ favor. It’s not clear they are.
For one thing, 10 Democratic senators are running for reelection in states that Trump won in 2016, and Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia, and Joe Donnelly of Indiana all voted to confirm Gorsuch. Would every one of these at-risk senators be willing to imperil their reelection chances by striking over Trump’s next nominee? Democrats can’t afford a single defection.
Then there’s the fact that the argument McConnell made in 2016 is different than the argument Democrats would have to make now. Back then, McConnell was employing the existing filibuster rules to block a nomination made in a presidential election year; his rationale was that the president is the person with the power to put forward such a nomination, and a new one would be elected soon, so the Senate might as well wait. Today, Democrats would have to circumvent the existing filibuster rules to block a nomination made in a midterm election year. They might argue that midterms determine control of the Senate, and that the Senate is the body with the power to confirm such a nomination. But voters will likely find that argument even less compelling than McConnell’s — especially because Obama himself nominated Elena Kagan in a midterm year (2010) and Republicans chose not filibuster her then.
Instead, Trump will nominate Kennedy’s replacement as soon as possible; on Wednesday, the president told reporters the process would “begin immediately.”
McConnell will push for a confirmation vote before Election Day. “We will vote to confirm Justice Kennedy’s successor this fall,” he vowed Wednesday.
Most Democrats will decry this maneuvering as “the absolute height of hypocrisy,” as Senate Minority Leader Chuck Schumer put it shortly after Kennedy announced his retirement. “People are just months away from determining the senators who should vote to confirm or reject the president’s nominee,” Schumer said on the floor of the Senate, “and their voices deserve to be heard now as Senator McConnell thought that they deserved to be heard then.”
Others will try to pressure imperiled GOP senators such as Nevada’s Dean Heller and pro-choice Republicans like Susan Collins of Maine and Lisa Murkowski of Alaska to break with their party and torpedo Trump’s nominee. The Democratic Party will make the midterms all about Kennedy’s replacement.
But despite these efforts, Trump’s nominee will probably be confirmed on a party-line vote and the composition of the highest court in the land will shift rightward for a generation or more.
More Yahoo News stories on Anthony Kenney’s retirement