Newly elected president Donald Trump will make his first Supreme Court nomination almost immediately upon taking office on January 20. And just as immediately, liberals will do everything in their power to block it through name-calling and parliamentary maneuvering.
The purpose of the name-calling will be to discredit the nominee in the eyes of the public. We do not know who Trump’s first nominee will be, but I will guarantee you that almost as soon as his name is announced, he will be called a racist, a bigot, a homophobe, a reactionary, a sexist, and a xenophobe. And that’s just for starters.
The left has been substituting name-calling for debate for years now. They no longer try to win debates by coming up with better ideas. They try to win them with sharper insults. They think they have won an argument by calling you a worse name than you can call them, and when they’ve laid that card down, they actually think that means the debate is over and they’ve won, whether they have any facts to back up their position or not.
Up until this last election, it worked almost every time. But the American people have grown tired of this transparently shallow tactic, which is why Donald Trump defeated Hillary Clinton. How effective it will be this time around is anybody’s guess. But name-call they will. I’ve always believed that name-calling is the last refuge of a man without an argument, and we’ll have an opportunity to road-test that hypothesis with every nomination.
But name-calling is not the only strategy Democrats will employ. They will also use every parliamentary tactic they can find to block any of Trump’s nominees from taking a seat on the bench.
One tactic Sen. Chuck Schumer is already threatening to use is the filibuster. The filibuster, as it currently exists, is not even a real filibuster. It’s a fake filibuster. It’s a Mickey Mouse travesty that allows the will of the majority to be frustrated by a show of hands, not by actual debate. So with a fake filibuster, all debate and forward progress is brought to a screeching halt, and under current Senate rules, requires 60 votes to break.
Merriam-Webster defines filibuster this way (emphasis mine): “an effort to prevent action in a legislature (such as the U.S. Senate or House of Representatives) by making a long speech or series of speeches.” In other words, for it to be an honest-to-goodness filibuster, somebody needs to be talking.
Now we all should be fans of unlimited debate in confirmation debates. If a senator has a point of view that touches on a nominee’s fitness for the Supreme Court, he should by all means be heard. Every senator should be allowed to debate for or against a nominee at whatever length he believes is necessary. But at some point, everybody will have said everything they have to say, and at that point, it’s time for a vote. And all that should be required to call for a vote is a majority of the Senate. That’s 51 votes, not 60.
The Republicans will have 52 seats in the next session. That number, 52, you will note, is not 60. This means the minority party, by doing precisely nothing, will be able to frustrate the party actually elected to run the Senate and do the people’s business. This tyranny of the minority is not what the Founders had in mind when they crafted the Constitution.
There is nowhere in the Constitution where 60 votes are required to break a filibuster or confirm a Supreme Court justice. That’s a rule of the Senate that can be changed with a simple majority vote. In fact, the Democrats dumped the filibuster for lower court and executive branch nominees in 2013 when they ran the Senate. This has allowed President Obama to stack and pack appeals courts with activist judges. When he took office, just one of the 13 appeals courts had a majority of activist judges appointed by Democrat presidents. That number is now up to nine.
But if Harry Reid and the Democrats could eviscerate the filibuster for lower court nominations, there is absolutely no reason why the Republicans can’t do the same for Supreme Court nominations. And they should so as the first order of business when they convene in January.
The Republicans will have 52 senators in the next session of Congress. This means that if the rule is changed, as it should be, they can confirm every single one of President Trump’s Supreme Court nominees as well as every one of his cabinet appointments.
Sen. Schumer has some calibrating to do. If he uses the filibuster for Trump’s Supreme Court nominees, the Republicans will simply change the rules - as Reid and his troops did in 2013 - and Trump’s nominees will slide right through, name-calling or not, and the composition of the high court will tilt toward Scalia-type originalism for a generation.
Harry Reid set the precedent of bagging the filibuster in 2013. The Republicans of 2017 should follow in his footsteps and cite his example. If they do, Harry Reid’s chickens will have come home to roost and the Republic can be saved.
And for that, we will have Harry Reid to thank. Who’d a thunk?