In the immediate aftermath of news Wednesday that Supreme Court Justice Anthony Kennedy will retire, Senate Democrats issued a series of statements promising to ensure that President Donald Trump doesn’t pick a conservative judge in his stead.
“They are conservative ideologues, not mainstream jurists,” California Sen. Kamala Harris said of Trump’s list made up of about two dozen potential picks. “We cannot and will not accept them to serve on the highest court in the land.”
From a rhetorical perspective, that sounds nice. But in raw political terms, it’s not at all clear how Harris or the rest of her Senate Democratic colleagues can stop Trump’s pick from being confirmed between now and November.
There are three things working against Democrats:
1. They don’t control the Senate: The majority leader of the Senate sets the schedule. And Senate Majority Leader Mitch McConnell made very clear his plan during remarks on the floor after the Kennedy news broke.
“The Senate stands ready to fulfill its constitutional role by offering advice and consent on President Trump’s nominee to fill this vacancy,” said McConnell. “We will vote to confirm Justice Kennedy’s successor this fall.”
2. Senate Republicans only need 50 votes: After Senate Democrats changed the rules to allow simple majorities to confirm judges below the Supreme Court level earlier this decade, McConnell pushed through a measure that made it a 50-vote threshold to confirm judges to the highest court in the country as well. (McConnell did so after Democrats held together and blocked consideration of the nomination of Neil Gorsuch in the spring of 2017.)
What that rule change means is that if all 51 Republicans support Trump’s court pick, that person will be confirmed. But a totally unified vote would depend on the likes of Sen Susan Collins (R-Maine) and Sen. Lisa Murkowski (R-Alaska), who have publicly trumped Trump in the past, staying in line behind party orthodoxy.
3. The 2018 map: There are 10 Democrats up for re-election in states that Trump won in 2016; five of those members – Sens. Joe Donnelly (Indiana), Claire McCaskill (Missouri), Jon Tester (Montana), Heidi Heitkamp (North Dakota) and Joe Manchin (West Virginia) represent states that Trump carried by double digits.
It’s no coincidence that Heitkamp, Donnelly and Manchin were the only three Democrats who voted for Gorsuch’s confirmation last year. They will be under even more pressure to support Trump’s eventual pick this time, given that the November midterms are looming.
The Point: None of the above means that Democrats won’t be able to raise money off the Kennedy opening or use the prospect of five solid conservatives on the court as motivation for their base in the fall. They can and they will. But when it comes to actually stopping Trump’s pick, the only people who can do that are the 51 Republicans in the Senate.