Democrats should think twice before using parliamentary tactics to delay or block President-elect Donald Trump's forthcoming nominee for the Supreme Court. The American people know the difference between holding up a nomination that would change the ideological balance of the court in the midst of a presidential election and denying the new president the opportunity to replace the late Justice Antonin Scalia with a qualified conservative.
When Scalia passed away last February, high stakes Supreme Court politics were injected into an already contentious presidential election season. With the high court down to eight justices and the specter of many 4-4 deadlocked decisions on the horizon, President Obama wasted no time nominating liberal federal Judge Merrick Garland as his choice to succeed Scalia. Liberals sensed an enormous opportunity to score some controversial 5-4 court victories, which before Scalia's death would not have been possible.
To his credit, Senate Majority Leader Mitch McConnell stood tall and shut down any hope that Garland would get a hearing before the presidential election when he unequivocally stated: "the next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the court's direction ..."
Democratic leaders smelled blood in the water and attempted to make McConnell's principled position an election issue. Attack ads were launched trying to convince Republican senators in close races to embrace a hearing for Garland. Democrats dreamed of Hillary Clinton scoring political points nationally with a "stop blocking Garland" line of attack against GOP presidential nominee Donald Trump. As it turned out, the American people would have none of it. Donald Trump was elected president with 306 electoral votes and swing state senators on the ballot like Chuck Grassley of Iowa, Pat Toomey of Pennsylvania, Ron Johnson of Wisconsin, Rob Portman of Ohio, Richard Burr of North Carolina and Marco Rubio of Florida all prevailed — as did Trump on top of the ticket in each of these critically important electoral states.
The American people said loud and clear that they wanted a Republican president and a Republican-led Senate to pick Scalia's replacement. Hillary Clinton's stated judicial priorities, such as overturning free speech rights granted in the Citizens United case and severely limiting the Second Amendment, were of great concern to voters. The election confirmed what conservatives had hoped was the case: Putting a liberal on the bench to replace Scalia would tip the balance of the court too far to the left.
The election notwithstanding, bitter Democrats are now threatening to block President-elect Trump's Supreme Court choice — apparently whoever it turns out to be — as revenge for the Republican strategy with regard to Merrick Garland's nomination. "Past is present, and what goes around comes around," is how Sen. Dianne Feinstein recently put it.
This strategy — if employed — is a big risk for Democrats. In 2018, 23 Senate seats currently occupied by Democrats are up for election. Two more are occupied by independents who caucus with the Democrats. Ten of those Senate seats are in states carried by Donald Trump. If Senate Democrats try to block President-elect Trump's nominee to replace Scalia, they will face the wrath of voters in those states, voters who clearly understand what is at stake. The outcome could leave Democrats with 40 or fewer Senate seats following the 2018 elections, a result that would give Republicans a filibuster-proof majority in the upper house.
The truth is that even with Scalia on the bench, the court was hardly a surefire 5-4 conservative majority, when you consider the recent Obamacare and gay marriage rulings. At most, the anticipated Trump selection will maintain the balance as it was prior to Scalia's passing, while Merrick Garland would have moved the court to the left. The Democrats should question the wisdom of moving to block our new president's Supreme Court pick for some sort of misguided political revenge.
J.T. Mastranadi is vice president for governmental affairs at Citizens United.