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Trump Already Won on SCOTUS, But Democrats Can Win the War

Updated: Jan 5, 2021

July 2, 2018

This piece was first published in DemWritePress and is reproduced here with permission. THIS IS HIGH-STAKES POLITICAL CHESS. MUELLER, THE 2018 ELECTIONS, THE PRESERVATION OF DEMOCRACY, AND EVEN IMPEACHMENT ARE ALL FACTORS IN A DEMOCRATIC RESPONSE STRATEGY TO TRUMP’S SCOTUS PICK. By Nick Knudsen Donald Trump got a huge political win when Justice Anthony Kennedy announced his retirement last week. As soon as the news came out, Democrats everywhere let out a simultaneous metaphorical primal scream. It’s warranted. This is really, really terrible. We are still seething over Mitch McConnell’s railroading of Merrick Garland, and the frustrating truth that Democrats have no mechanism to stop Trumps’ SCOTUS picks after McConnell scrapped the judicial filibuster to get Gorsuch through in 2017. Democrats see that Republicans will do ANYTHING to win, and they want Democrats to play dirty. Calls for Democrats to block this nomination came from all sides, including from MSNBC’s Chris Matthews, who said, “I think if the Democratic leadership under Schumer allows this to go forward, they’re going to have a huge problem with the Democratic base.” Democrats want “eye for an eye” because of what McConnell did in 2016 to Merrick Garland. But here’s the problem: these situations are “apples and oranges”. Swallow this disgusting pill, because it’s really important. In 2016 during the Garland obstruction, and during 2017 when McConnell changed the rules to let Gorsuch sail through, Republicans had control of the Senate. This is still the case. IT MATTERS which party has control of the House and Senate. It is very consequential. Because Republicans are in control, they set the agenda, and to the extent that things happen on the basis of a simple majority – which is the case at the moment with judicial confirmations – they can do what they want. Giving an ultimatum to Democrats that they’d better “stop this nomination” dead in its tracks “or we’ll vote you out” is not only counter-productive, but could have very negative consequences for our democracy’s recovery from the Trump catastrophe (if there is a recovery). This is not strategic framing, though it’s easy to understand why people have this visceral reaction. LET’S PLAY THIS OUT. President Trump has said that he will announce his pick for SCOTUS following the July 4th weekend. Let’s presume he puts forth a “Gorsuch” pick – a deeply conservative but otherwise competent jurist. Political scientists and constitutional experts seem in agreement that Democrats have no technical ability to block this confirmation. But let’s presume Democrats find a way to delay the nomination via some mechanical delay of some kind – say, by not showing up, and thus denying the GOP a quorum (though technically, Republicans have enough Senators for a quorum, but let’s pretend…).  Or by recruiting two disaffected Republicans like Jeff Flake or Bob Corker. How does the chess match play out from there? All you have to do is go back to the 2016 election to understand the implications, because Donald Trump is now President due to McConnell’s SCOTUS maneuvering. See, Republicans vote on SCOTUS, because they’ve been conditioned to vote on cultural issues that actually have little to do with day-to-day governing (but which of course have deep impact on peoples’ lives). Abortion. Guns. Gay marriage. In other words – the Culture War. So when McConnell deviously pushed the SCOTUS nomination to the next presidency, he put this consideration in play for conservative voters – and it was consistently amplified by right wing media and the religious right. With margins as tight as they were in swing states, it is a foregone conclusion that the enticing prospect of a conservative SCOTUS pick convinced enough conservative voters to hold their noses and vote for the blasphemous pussy-grabber, putting Trump over the top (aided and abetted by Putin, of course). While Democrats have a solid shot at taking the House this November, the Senate is a MUCH steeper climb. Almost all of the consequential battles are over Democratically-controlled seats. Democratic incumbents are fighting for their lives in red and purple states: Florida (Nelson), Missouri (McCaskill), North Dakota (Heitkamp), West Virginia (Manchin), Indiana (Donnelly), Minnesota (Smith) & Ohio (Brown). These are just the HOLDS. Democrats have to win ALL of those seats, which are in grave jeopardy. These Democrats need Independents and Republicans to vote for them, because Democrats generally lag in voter registration across the board in these states. But it’s not enough to HOLD. To take the Senate, Democrats need to ADVANCE. The most likely pickups are in Arizona and Tennessee’s open seats, as well as Dean Heller’s seat in Nevada. If SCOTUS is in play as an issue for conservatives in these red and purple states during the 2018 election, Democrats will lose the Senate. Guaranteed. Then – after the election – presumably having argued that the SCOTUS nomination and confirmation should wait “until after the election,” Trump will get his pick, and Democrats will have railroaded their own chances at actually picking up the Senate. Then: what if there is another SCOTUS opening in Trump’s final two years? This scenario just doesn’t work out for Democrats or for the nation. On the flipside, losing this battle might ensure that we win the next one – because a Senate with a Democratic majority can actually “pull a McConnell” if another seat opens up. Of equal significance is winning the broader war: if Democrats are in the majority, they have the ability to investigate abuses by the President and GOP. This is critical for democracy. And in the event that the House drafts articles of impeachment based off of those investigations or information from Mueller’s probe, there need to be 67 votes in the Senate to convict the President of high crimes and remove him from office. Of course – this was all just a thought experiment, because there isn’t a viable way to block the SCOTUS nomination and confirmation anyway. As Dick Durbin said, “I’m sure many of them believe we have the power to stop this. But the grim reality is that we have some power but not the power to stop this.” As tough a pill as this is to swallow, Trump and his Republican allies in Congress are going to win this battle. Don’t get me wrong – I do believe Democrats need to scream bloody murder and make this process as painful as possible for Republicans. They need to call out the hypocrisy. They need to use very forceful rhetoric. (Because rhetoric is really the only tool they have.) They need to make symbolic and public gestures of defiance. But they will lose. BEST CASE SCENARIO Looking ahead at the next few moves in this chess match, Democrats have to take some more blows to the body before they can have a shot at a knockout punch of their own.

  1. We, the Democratic opposition, get behind and encourage our elected officials instead of offering ultimatums. YES: “Senator Schumer, fight like hell. We’ve got your back!” NO: “If you don’t stop this Supreme Court pick, we’ll vote you all out!!1!1!”

  2. Democratic lawmakers “fight like hell” rhetorically, convincing their base that they understand the gravity of this SCOTUS pick.

  3. Though Democrats lose the battle, the energized base gets behind their leaders headed into the 2018 election.

  4. Democrats win both the House and Senate in 2018, safeguarding against another Trump SCOTUS pick and blocking all other Trump judicial picks for the remainder of his term. Investigations ensue.

  5. A disgraced Trump (or his replacement) loses in 2020, and a united Democratic government makes serious changes, including pushing a Constitutional amendment to ensure that minority parties have enshrined rights to impact judicial picks.

Sorry. I know it’s not ideal. ONE LAST PILL TO SWALLOW One more heads up. Guess what? Joe Manchin, Heidi Heitkamp and a handful of other Democrats on the chopping block this November are probably going to have to vote in favor of Trump’s SCOTUS pick. I’m saying this now so that you prepare yourselves. This is actually the right thing to do, so long as all of the Republicans are prepared to vote for the pick as well. This is known as a “margin vote”. Margin votes are inconsequential votes made by those in Congress who represent a state or district that largely carries the ideology of the opposite party. Margin votes are necessary for these elected officials who are constantly under the microscope. In the case of Democratic Senators from red states (like those up for re-election this fall), we see them cast a vote from time to time in favor of a bill that flies in the face of Democratic Party principles. But these votes are almost never “deciding” votes. They are cast in situations when it is politically helpful for the Senator to assert independence from the Democratic party to assuage conservative constituents, but where it isn’t the vote that puts a bill over the top. These votes can & will make the difference between a 51-49 Democratic Senate and 51-49 Republican Senate. These SCOTUS votes are the ultimate margin votes for conservative-state Democrats. In particular, I’d expect to see Manchin and Heitkamp to vote in favor of confirmation directly before the election. I’d actually encourage them to, so long as it’s a margin vote. When they do it, lay off. Lose the battle. Win the war. The important thing is that they caucus with the Democrats when it counts the most. If they fail in that duty, by all means – primary them hard the next time around. CONCLUSION This is chess. Sometimes you have to lose a queen to put the King in check. But losing the whole game isn’t an option. Checkmate must be ours.

The Loyal Opposition

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