Tuesday, November 15, 2016

Supreme Court Tactics After the Trumpocalypse

If you want a story about getting Trump to nominate a judge who isn't another Scalia, this is the story for you.

President Obama nominated Merrick Garland in March, and Republicans never held hearings so that they could pass the nomination forward to Donald Trump. This weekend, Senator Merkley told Republicans that if they want Democrats to cooperate, Trump needs to nominate Garland so he gets the hearing he deserves.

I think Garland is about as likely as Andy Egan to be the next nominee. But that just takes us to the other side of Senator Merkley's conditional: no cooperation, and a filibuster. Mitch McConnell might want to eliminate the filibuster on Supreme Court nominations in response, but there are enough old institutionalists in the Republican Party to make this challenging within the GOP caucus. And there are a lot of other ways to tie up the Senate, which Chuck Schumer might employ if McConnell just ends the filibuster. Even if the vote goes forward, defections from three Republicans are enough to defeat the nominee.

With this in mind, Republicans will want to negotiate with Democrats about whom they nominate instead. And here's where things get fun. The person with nominating authority, Donald Trump, doesn't have any deep ideological commitment to the goals of the conservative movement. His main commitment is his own narcissism. Mike Pence will want to nominate another Scalia, but there may be a way around him.

The path forward might look like the Harriet Miers nomination of October 2005. Harry Reid's crafty move was to suggest that Bush nominate his unqualified but non-ideological friend to the Supreme Court. Bush accepted!

The nomination only failed when movement conservatives within the Bush Administration made him pull the plug. I don't know if anybody within could make Trump pull the plug on a nomination -- he doesn't feel he owes movement conservatives very much, and anyway Trump isn't a man who pays his debts. So a new Harriet Miers is a judge we can be very happy with.

A court with 4 progressives, the old institutionalist Roberts, the romantic libertarian Kennedy, two movement conservatives, and a Trump-crony who decides at random will rule our way pretty often. There are majorities there that can stop really bad Trumpy stuff, and also that can decide our way on other issues. I don't think this is the most likely outcome -- Pence is in the White House to prevent it. But it's an outcome worth playing for.

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