Within an hour or two of Justice Kennedy announcing his retirement from the Supreme Court, Senate Majority Leader Mitch McConnell said that the Senate would confirm anyone he nominated before the midterm election in November. Can the Democrats prevent that? It seems awfully unlikely.
The problem here, obviously, is that Republicans control the Senate by a 51-49 margin. The Republicans already did away with the filibuster for Supreme Court nominees in order to end debate on the Gorsuch nomination so he could join the court, so that provides no help in preventing a vote. The only real chance Democrats have of blocking confirmation is to convince at least two Republicans to vote against the nominee, or at least to vote to hold up the process until after the midterms in the hope that they can take control of the chamber and have some real power to shape the nomination.
Who are the potential Republican senators who might do that? The two obvious choices are Susan Collins of Maine and Lisa Murkowski of Alaska, both of whom are pro-choice on abortion. And if there is one right that is undeniably at risk and almost certain to disappear if Trump gets to name almost anyone to the court at this point, it’s that right. If they cast their votes for a Trump nominee, they are pretty much signing the death warrant for reproductive rights in this country.Jeff Flake and Bob Corker are also possibilities, as they have been been strong critics of Trump in many ways and are leaving office in January, so they don’t have to worry about reelection campaigns. And even John McCain, though in dire health, can still technically cast a vote here. The trouble is that anyone Trump is going to nominate will be on the same side as those men on most judicial issues.
I saw Sherrilyn Iffil point to the Bork hearings as a model because the Democrats prevented him from being confirmed, but that was when the Democrats had a 54-46 edge in the Senate, which is a massive difference from today’s reality. I think it really does come down to Collins and Murkowski. They need to face maximum pressure from the public over this. That’s the only realistic hope of preventing the worst.
And bear in mind, that won’t end the issue. Eventually, Trump is going to be able to fill that seat on the court (and if not him, it’ll be Pence). The absolute best that can be hoped for is that we can prevent the worst, most extreme person from taking it. Depressing, I know, but reality often is.