The vote spread in the Senate is tantalizing. The GOP has a two vote margin, one if you don’t count John McCain. Defeating a Trump Supreme Court nominee seems doable IF the two Republican Senators who are on the record as pro-choice vote against a nominee. Don’t hold your breath: moderate Republicans always cave.
Yeah, I know, Collins and Murkowski voted against ACA repeal but that’s an exception to the rule. Unless Trump picks a nominee as outlandish as his twitter feed, they’ll vote the party line. One reason I expect a smooth and genial Gorsuch/Roberts-type nominee is who vetted the potential Supremes for the Trumpers:
Leonard Leo — the anti-abortion Federalist Society executive vice president currently on leave to advise the President on Supreme Court nominees, and the originator of Trump’s campaign-era list of potential nominees — has been careful to note that names on the list have not taken a public stance on abortion.
“None of the people who are being talked about now in the public space in the media are people who have a clear position on Roe v. Wade,” he said, as quoted by the Washington Free Beacon.
The right has these things down to a science. They’ve been honing their craft since the Robert Bork was, well, borked by the Senate. They tend to pick nominees who are rational on the outside but stone cold wingnuts on the inside. It’s one reason they prefer to nominate federal judges because they’re not out there writing inflammatory articles. The Gorsuch nomination proved this is one area in which Trumpism hasn’t dumbed down the GOP.
Senator Collins is making reassuring noises about how she wouldn’t support a nominee who “demonstrated hostility to Roe v. Wade.” But she’s also convinced that neither Roberts nor Gorsuch would vote to overrule it. That naive notion seems to be based on her belief that they’re “nice guys” and that “nice” Neil Gorsuch wrote a book about stare decisis:
“I had a very long discussion with Justice Gorsuch in my office and he pointed out to me that he is a co-author of a whole book on precedent,” she said. “So someone who devotes that much time to writing a book on precedent, I think understands how important a principle that is in our judicial system.”
Collins is willing to be hoodwinked by private assurances when the Court overruled several longstanding precedents this term:
Liberals leading the charge against Mr. Trump’s potential picks quickly dismissed Ms. Collins’s remarks, suggesting that the senator was either being hoodwinked or knowingly obfuscating her position. They pointed to court decisions as recently as last week — when the justices overturned a four-decade-old precedent in Janus v. American Federation of State, County and Municipal Employees to deal a blow to organized labor — in which it reversed earlier rulings.
“This proves how flimsy Collins’ pro-Roe position is,” Brian Fallon, a longtime Democratic operative whose organization, Demand Justice, is helping organize opposition to potential nominees, wrote on Twitter on Sunday morning, referring to Ms. Collins’s comments on Mr. Gorsuch. “She is perfectly happy to let herself be suckered based on phony assurances about ‘precedent.’
Repeat after me: moderate Republicans always cave. The moderate to conservative red state Democratic Senators up for re-election this year have NO incentive to die on the SCOTUS hill unless Collins and Murkowski break with their party. It’s hard to imagine the most vulnerable Dem, Joe Donnelly of Indiana, voting against a conservative court pick in any event. He was elected because he ran in a presidential election year and had an appalling opponent. Conservative Democrats *usually* cave on Republican Supreme Court nominees, after all.
There is no path to defeat a Trump nominee unless Collins and Murkowski announce their opposition early and often. Otherwise the red state Democrats will cave since they’re already running scared. That, too, could hurt their campaigns by flattening out enthusiasm among liberals. There *are* red state liberals: I’m one of them
Of particular interest to me is how Alabama’s Doug Jones comes down on this issue. He has to run again in two years BUT he’s a rather learned lawyer who has surely thought about the implications of replacing Kennedy with a hardcore conservative. There’s no incentive for him to do the right thing if Collins and Murkowski cave.
The best case scenario is for the vote to be delayed until after the election. Given the nuking of the filibuster on SCOTUS votes, I’m not sure how this can be accomplished. I know for certain that Chinless Mitch does not give a shit about the so-called McConnell rule. He could care less about accusations of cynicism: he’s cynical and damn proud of it.
I agree with Larry Tribe and Cory Booker that Trump should not be allowed to appoint a Justice who might rule on issues involving the Mueller probe. I have my doubts that such considerations will move any GOP votes since some of them are working to destroy the investigation. Besides, a prospective nominee could theoretically defuse that issue by promising to recuse themselves. That’s only likely to happen if they think they’re going to lose. Here’s how Jessie Jackson might have phrased it in his prime: If you’re going to lose, defuse and recuse.
I remain committed to fighting the nomination, but Josh Marshall presented some contrary views at TPM that are worth considering. The one upside to the political corner Anthony Kennedy’s retirement has painted us into is that GOP money is flowing from House to Senate races. That helps Democratic odds of retaking the House but the Senate was always trickier given the map.
Anything can happen and a few months is a lifetime in politics. But one should never forget: moderate Republicans always cave.