Will Democrats 'Garland' Trump's Supreme Court Nominees?

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By Casey C. Sullivan, Esq. on January 06, 2017 2:56 PM

With President-elect Trump's inauguration quick approaching, we could soon have a new nominee to the Supreme Court, almost a year after Justice Scalia's death and after nearly 300 days of Senate Republicans refusing to consider Merrick Garland's nomination. The Supreme Court would finally be back to a full set of justices, its frequent deadlocked non-decisions a thing of the past.

Or not. As Trump narrows down his SCOTUS list, some are suggesting that Democrats should block any or all of Trump's Supreme Court nominees.

Who Would Do Such a Thing?

So far, the main calls for a term-long delay in filling the Supreme Court's vacancy have come from the partisan fringes. But Senate Democratic Leader Chuck Schumer gave the idea of a long-delay some legitimacy recently.

In an interview, the senator told Rachel Maddow, "We are not going to settle on a Supreme Court nominee; if they don't appoint someone who is really good, we're going to oppose them tooth and nail."

"We are not going to make it easy for them to pick a Supreme Court justice," he continued. He didn't suggest a four-year stonewall, but he did indicate that Democrats could delay a nomination for some time.

That caused shock, dismay, and much pearl clutching from Senate majority leader Mitch McConnell. "Apparently there's yet a new standard now which is not to confirm a Supreme Court nominee at all," he said on Wednesday, saying such a plan is "something the American people simply will not tolerate."

That's from Mitch McConnell, people. The man announced that the Senate would not consider any of President Obama's Supreme Court nominees just about one hour after Justice Scalia's death was announced. The irony of his most recent position hasn't been overlooked.

A Tough Nomination, but a Nomination Nonetheless

Senator Schumer's pledge to challenge Trump's Supreme Court nominees doesn't amount to a refusal to consider any nominee -- the position endorsed by Republicans just weeks ago.

Indeed, Democrats don't have the ability to do so, at least not in the same way that Republicans did. Democrats are in the minority in the Senate, without control over the Senate Judiciary Committee.

But Democrats could rely on the filibuster. That tactic would make confirming a new justice difficult, but probably not impossible. (Republicans would need to flip only a few Democrats to overcome the filibuster. A tough task, but one that becomes more likely the longer a delay lasts.)

Democrats certainly can't expect to keep the seat vacant until the 2020 elections. And after nearly a year of decrying Republican obstruction, it would be eminently hypocritical for Democrats to oppose any nominee simply because they were a Trump nominee.

That's not to mention the damage continued gamesmanship over the seat will cause, in terms of Court deadlocks, declining respect for our institutions, and increasing bad faith between the parties.

Our prediction: whoever is nominated for the Supreme Court will have a tough go. Democrats may even be able to defeat a more extremist nominee, say one who has vowed to overturn Roe v. Wade. But Trump will eventually get a justice seated on the Court, probably in less time than that seat has been vacant.

If another sitting justice were to pass, say in 2020, though? Well, who knows what would happen then.

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