Wednesday, November 9, 2016

How to Replace Scalia

Donald Trump is President of the United States. Most of my friends who voted for him did so first and foremost so that Trump would pick the successor to Antonin Scalia. They want the same sort of replacement that I want—someone like Scalia; they just had more confidence in Trump than I had about whether we will get that.

If Donald Trump is serious about providing a more Constitutionalist Court, here's how I think he should go about it.

First, we have to acknowledge that the GOP does not hold a filibuster-proof majority in the Senate. A president nominates people to the Supreme Court, but he has to have the consent of the Senate before a justice can be installed. Senatorial confirmation is going to be difficult to achieve. Democrats will find justification for a filibuster in the GOP's refusal to conduct hearings on Obama's nominee Merrick Garland. Count on the Democrats to filibuster.

Donald Trump should put forward a nominee from his list. He should choose first the person on that list whom he least likes, because the first nominee is doomed. I'm going to guess that Trump will nominate Cruz. The Democrats will be apoplectic. They will fight hard against him. The GOP senators will not fight hard for him, because they don't like Ted Cruz. Cruz would be my favorite nominee, but there's no way Ted Cruz gets past the Senate to join the Supreme Court.

After his first nominee is defeated, Trump should put forward another nominee from his list. Then another. Then another.

The Democrats can get away with blocking one nominee or maybe even two, but eventually it becomes politically dangerous to continue to filibuster nominee after nominee after nominee. If I were Donald Trump, I'd save the nominee I liked best for my third or fourth nomination, and then I'd push hard for that one.

Invoking the "nuclear option" is going to be a big temptation. Trump will push for the GOP Senate to do so. But that's a very risky play, because the odds of losing GOP majorities in Congress at the midterms is significant, and at that point the GOP is going to be happy that the filibuster is still an option.

The worst potential outcome would be this: After a couple of nominees from his list fail to clear the Senate, Trump compromises and nominates a moderate to the court, which is pretty much the same thing as nominating a Lefty, as Associate Justice Kennedy has taught us. Donald Trump hates losing, loves winning, and is prone to change his ideology on a whim. Let's pray that doesn't happen, because the stakes are high for the unborn, for religious liberty, and for the legitimacy of our American government in the face of a Supreme Court that long ago left the Constitution behind.


Unknown said...

That's not a bad idea; but, I would rather sacrifice 2 or 3 names from the list and then try Cruz.
And they should use harry reid's rule change to deny filibusters on all non Supreme Court nominees. Of course, Republicans generally boast of noblesse oblige and return the gift without using it; and get sucker punched over and over and overrrrrr.

Bart Barber said...

Oh, I'd save Cruz for later, too. But I don't think Trump likes Cruz the way that I like Cruz.

D Smith said...

The Democrats have 25 senators up for reelection in 2 years. 13 of them are from states that Trump either won or came close to winning. Those senators might be less willing to stick their necks out than we expect.
Instead of extending Harry Reid's filibuster bypass rule to the Supreme Court I'd recommend imposing the filibuster rule by constitutional amendment. Maybe we could even increase the urgency for the Democrats to pass such an amendment by ignoring the filibuster. While it's true that any reluctance to bypass the filibuster on our part today will be laughed at as soon as the Democrats regain power, it may turn out that we rue the day we used this tool and left it around for our successors.

Unknown said...

Agreed; but I can't imagine getting that amendment passed. My suggestion was to apply the rule to all court appointments; Except supreme court (which is what I remember the dems doing). My objection is to us not using it is dems will use it Whether Or Not we do.

D Smith said...

Sorry, I missed the "non".
As long as I'm dreaming up changes, I'd like to see the constitution specify a maximum of 9 Supreme Court justices as well.