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MATTHEW BOOSE: Republicans have a safe advantage in SCOTUS fight, but it’s not 100%
With Anthony Kennedy’s retirement, Republicans have an opportunity to re-shape the Supreme Court for decades to come.
While a conservative replacement looks like a lock to many, it’s imperative that Republicans do not buckle to pressure from the Democrats to choose a weak, moderate justice who will only perpetuate the status quo.
If no Republicans defect, then it’s game over for the Democrats. Nevertheless, the Republicans have a slim majority, and that includes John McCain, Jeff Flake, and two pro-abortion moderates.
Needless to say, this is not the time for McCain or Flake to grandstand about civility and bi-partisanship. The left has made its feelings on civility and compromise very clear these last couple of weeks.
Granted, the situation for Republicans is hardly dire. The rules favor Republicans, who only need a simple majority of 51 votes to win thanks to a rules change last year. Moreover, Flake has signaled that he will not oppose the nominee. What little chance the Democrats have of blocking Trump’s nominee will depend on the success of the strategy they used to force Trump to sign an executive order on immigrant families last week. It’s a question of whether they can use massive protests and pressure campaigns to get Republicans to buckle to their demands.
The timing of Kennedy’s retirement leaves a Republican-controlled Senate and White House with plenty of time to confirm a replacement while they still have a majority, but it also gives the Democrats a window of opportunity to wage their own pressure campaign, ill-fated as it may turn out to be, ahead of the midterms. Republicans have time to make their pick, and Democrats have time to build outrage.
It only took a week for the left to mount a massive pressure campaign that brought mainstream media channels, grassroots activists, and leading lawmakers together to convince Americans across the country that the Trump administration’s border policy was just like the Holocaust. Their propaganda campaign succeeded, with Trump signing an executive order to change the policy and many cheering harassment against administration officials.
The left now has several weeks to convince people that Trump’s nominee will usher in a repressive Christian theocracy. They will stoke fears of Roe V. Wade’s repeal to target vulnerable Republicans as the midterms loom.
Rather than banking on treachery from Flake or McCain, the left may be better off relying on the dissension of Senators Susan Collins (R-Me.) and Lisa Murkowki (R-Ak.), both pro-abortion Republicans.
Both Collins and Murkowski voted to confirm Gorsuch, but that was not a vote to replace a moderate justice and decisively alter the ideological balance of the court. Democrats have some leverage to pressure them now because the stakes are much higher.
Nevertheless, the asymmetry of the situation is palpable. Both parties can use the threat of a referendum in November to keep their parties in line while trying to capture senators across the aisle. For the Democrats to succeed, they must snipe at least one Republican, and possibly more, if any vulnerable Democrats end up siding with Trump. Democrats in states that Trump won, Sens. Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, and Joe Manchin of West Virginia, all voted to confirm Neil Gorsuch, and Republicans will pressure them to vote for the nominee.
Pressuring Republican candidates is a safer bet for the Democrats than any weak, moralizing argument demanding consistency from the Republican party. When the Republicans refused to consider Merrick Garland in 2016, it was a presidential election year. There was a reasonable argument to be made then in favor of waiting for the president to take office. The Democrats may argue that the midterm election determines the composition of the Senate, which confirms the nominee, but the Obama administration confirmed Elena Kagan in 2010, a midterm year.
Frankly, even if there were a double standard, the Republicans have been presented with too precious an opportunity to pass up. In a time where harassment against conservatives is steadily becoming normal, the right cannot refuse a chance to claim institutional power that it desperately needs. Republicans aren’t beholden to any flimsy “McConnell rule.”
Assuming Trump’s choice is confirmed, there is also the question of the nominee’s values. Trump may be temped to pick a moderate justice to ensure the support of swing voters, but the left will bitterly oppose whoever Trump selects as a threat to abortion anyway. Trump should not spoil this opportunity by replacing one moderate justice with another. Even without the support of Collins or Murkowski, there are enough vulnerable red-state Democrats to confirm a strong conservative. If the GOP were to lose Collins and Murkowski but pick up Donnelly, Heitkamp, Manchin, and Flake, they’ll still have 51 votes. Worst case scenario, Mike Pence can break a tie.
All around, things are looking pretty bad for the Democrats, but it’s not locked in yet. Republicans need to back the president and get ready to fight.
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