Trump should play hard­ball in court nom­i­na­tion bat­tle

Pawtucket Times - - OPINION - By MARC A. THIESSEN Spe­cial to The Wash­ing­ton Post

Don­ald Trump should push the nu­clear but­ton.

No, not the one that launches ac­tual nu­clear weapons. I mean the one that blows up Demo­cratic ob­struc­tion to his Supreme Court nom­i­nee and puts a re­li­able con­ser­va­tive on the court to re­place jus­tice An­tonin Scalia.

There is no rea­son for Trump and Se­nate Repub­li­cans not to go nu­clear. Se­nate Democrats have al­ready made clear their in­ten­tion to stonewall his nom­i­nee, be­fore even know­ing whom he plans to nom­i­nate on Tues­day night. "If the nom­i­nee is not bi­par­ti­san and main­stream, we ab­so­lutely will keep the seat open," Se­nate Mi­nor­ity Leader Charles Schumer, D-N.Y., re­cently de­clared.

No, you won't. Se­nate Democrats don't have the power to "keep the seat open."

That's be­cause, in 2013, Democrats broke a nearly four-decade-long prece­dent and changed Se­nate rules to elim­i­nate the fil­i­buster for ex­ec­u­tive branch nom­i­na­tions and ap­point­ments to the fed­eral cir­cuit or dis­trict courts — al­low­ing them to be con­firmed by sim­ple ma­jor­ity. Elim­i­nat­ing the fil­i­buster for po­lit­i­cal ap­point­ments that die with a pres­i­dent's term was one thing. But Democrats elim­i­nated the fil­i­buster for life­time ap­point­ments to the fed­eral bench as well. Once that line was crossed, Repub­li­cans can now rightly ask: Why stop at the dis­trict and cir­cuit courts of ap­peal? If Democrats openly say they will ob­struct any­one Trump chooses, why not fol­low the prece­dent they set and ap­ply their rules to Supreme Court nom­i­nees?

The rea­son Democrats elim­i­nated the fil­i­buster for ju­di­cial ap­point­ments was to let Barack Obama stack the fed­eral courts with lib­eral judges — par­tic­u­larly the U.S. Court of Ap­peals for the Dis­trict of Columbia Cir­cuit, the na­tion's sec­ond-high­est court, which re­views many crit­i­cal cases re­lated to fed­eral laws and reg­u­la­tions. And stack the courts Obama did. He ap­pointed more than onethird of the fed­eral ju­di­ciary and re­versed the ide­o­log­i­cal bal­ance of the 13 U.S. cir­cuit courts of ap­peals. When he took of­fice, 10 cir­cuit courts had con­ser­va­tive ma­jori­ties. To­day, nine have lib­eral ma­jori­ties, in­clud­ing the D.C. Cir­cuit.

Go­ing nu­clear paid huge div­i­dends for the left. One of the lib­eral judges Obama put on the D.C. Cir­cuit on a party­line vote was Nina Pil­lard. She later au­thored the de­ci­sion that up­held the Oba­macare con­tra­cep­tion man­date. When Obama first nom­i­nated her Democrats never ex­pected her to be con­firmed. She was, White House sources told Politico, "a sac­ri­fi­cial lamb, a scalp Repub­li­cans could claim while con­firm­ing" Obama's other picks. She went on to write the de­ci­sion that forced the Lit­tle Sis­ters of the Poor to vi­o­late their re­li­gious con­science.

Obama and Se­nate Democrats used the nu­clear op­tion to shift the ide­o­log­i­cal tilt of the na­tion's sec­ond-high­est court. And if Democrats had con­trolled the Se­nate last year, does any­one doubt they would have hes­i­tated to use it to put Mer­rick Gar­land on the Supreme Court over Repub­li­can ob­jec­tions? Of course they would have. And the next time they are back in the ma­jor­ity, they will not hes­i­tate to use the nu­clear op­tion to over­come Repub­li­can op­po­si­tion to a lib­eral nom­i­nee. It is only a mat­ter of time be­fore the nu­clear op­tion is in­voked. The only ques­tion is whether it will be in­voked by Repub­li­cans now, or by Democrats later.

So why wait? Trump should for­get about the Democrats and pick the most con­ser­va­tive nom­i­nee pos­si­ble. He does not even need ev­ery Repub­li­can to vote with him. He needs just 50 of the 52 Se­nate Repub­li­cans to vote in fa­vor, and Vice Pres­i­dent Mike Pence can cast the tie-break­ing vote.

By go­ing nu­clear, Trump has a chance to do some­thing no mod­ern Repub­li­can pres­i­dent has ever done — have a per­fect record on Supreme Court nom­i­na­tions. As I have pointed out, over the past three decades, Demo­cratic pres­i­dents have ap­pointed four jus­tices — Ruth Bader Gins­burg, Stephen Breyer, Elena Ka­gan and So­nia So­tomayor — and ev­ery sin­gle one has been a con­sis­tent lib­eral on the bench. Repub­li­cans, by con­trast, have picked seven jus­tices — San­dra Day O'Con­nor, An­tonin Scalia, An­thony Kennedy, Clarence Thomas, David Souter, Sa­muel Al­ito and John Roberts — and more than half have de­fected to vote with the court's lib­eral bloc on crit­i­cal is­sues. Democrats have a per­fect record, while Repub­li­cans are not even bat­ting .500.

One rea­son is that, while Repub­li­cans have con­sis­tently al­lowed qual­i­fied lib­eral jus­tices with whom they dis­agreed philo­soph­i­cally to move for­ward (So­tomayor was con­firmed 68-31, and Ka­gan was con­firmed by a vote of 63-37), Democrats do not.

This meant that Democrats could ap­point jus­tices who openly af­firmed lib­eral po­si­tions (declar­ing, as Gins­burg did in her con­fir­ma­tion hear­ing, that the right to abor­tion was "cen­tral to a woman's life, to her dig­nity") while con­ser­va­tive nom­i­nees had to speak cryp­ti­cally in terms of ju­di­cial phi­los­o­phy to avoid a Demo­cratic fil­i­buster.

Well, that is no longer nec­es­sary. Trump can, if he so chooses, put a nom­i­nee on the Supreme Court who has openly and cor­rectly de­clared that Roe v. Wade is the "worst abom­i­na­tion in the his­tory of con­sti­tu­tional law" — and Democrats are pow­er­less to stop him.

If and when that hap­pens, Democrats will have no one to blame but them­selves — be­cause they set the prece­dent that Repub­li­cans will fol­low. Back in 2013, when then Se­nate Ma­jor­ity Leader Harry Reid, D-Nev., in­voked the nu­clear op­tion for life­time ju­di­cial ap­point­ments, The Post re­ported that af­ter the vote "Reid and his lead­er­ship team held a vic­tory party with lib­eral ac­tivists af­ter­ward in a room just off the Se­nate floor."

Let's hope they en­joyed it. Be­cause the party's over.

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