Three signs suggest that Democrats already believe they won’t have the votes to defeat President Donald Trump’s nominee to replace Justice Anthony Kennedy.
First, Democrats no longer have the filibuster to prevent confirmation votes. They abolished filibusters for all but Supreme Court nominations in 2013 and Republicans took Supreme Court nominations off the filibuster table last year.
Second, Democratic leaders are saying they will oppose Trump’s nominee even before he announces his choice.
Third, Democrats are making increasingly bizarre arguments that the Senate should delay the confirmation process until next year.
This all sounds pretty desperate.
The latest argument for delaying the process comes from Sen. Cory Booker, D-N.J. In a Judiciary Committee meeting on June 28 and elsewhere, he has been saying that the Senate should delay the confirmation process until after special counsel Robert Mueller has finished his investigation of foreign interference in the 2016 election.
He hasn’t, however, explained why.
In that committee meeting, for example, Booker said that a “conflict of interest” is “clearly present” but never said what that conflict is. He referred to Trump being the “subject of a criminal investigation” but never explained why, even if that were true, that would be a reason to delay the confirmation process.
Booker warned that the Senate “could participate in a crisis that could undermine the [Mueller] investigation” but never explained how. It’s all very confusing.
There’s been a suggestion that the president should not be allowed to appoint a justice who might have to review a case involving the president. That makes about as much sense as saying that senators should not participate in voting on a Supreme Court nominee who one day might have to decide the constitutionality of legislation they enacted.
Democrats, however, had no problem in 2009 and 2010 confirming to the Supreme Court two justices who everyone expected would consider the constitutionality of Obamacare.
Democrats had no problem in 2014 confirming President Barack Obama’s nominees to the U.S. Court of Appeals in Washington who were to review the validity of his administration’s regulations.
These claims are like political spaghetti, but nothing will stick to the wall.
Trump has said he will announce his nominee on July 9 and the Senate confirmation process will begin.
What can we expect?
The Senate has considered 14 Supreme Court nominations from Sandra Day O’Connor, nominated in 1981 by President Ronald Reagan, to Neil Gorsuch, nominated last year by Trump. The Judiciary Committee began its hearing an average of 45 days after their nomination and voted on confirmation an average of 72 days after nomination.
That’s an average, to be sure. The present nomination, however, is happening at the most common time for a Supreme Court vacancy and the court’s next term does not begin until the first Monday in October.
There’s plenty of time for a full and fair evaluation so the Senate can provide its “Advice and Consent.”