The unthinkable is about to happen. It is undeniable that the social gains of the past five decades are at grave risk in the hands of an ultraconservative Supreme Court once Donald Trump and Senate Majority Leader Mitch McConnell race us through the nomination and confirmation of the next Supreme Court justice — in fact, Trump plans to announce his nominee Monday night.
This is the ultimate triumph of the minority over the majority. We are headed to a place unknown in America, but we can be sure it's dark. We know it is not right and that this political gamesmanship the Republicans have been playing for years is not what the Founding Fathers intended when the Constitution was ratified. What McConnell is going to accomplish for Trump’s minority with his ruthlessness is abhorrent to everything the signers of the Constitution believed in.
With a 51-49 majority in the Senate, the Republicans are confident the numbers are on their side. The Senate Democrats appear to be groping for a strategy to block Trump’s pick, hoping that pro-choice Republicans Susan Collins (Maine) and Lisa Murkowski (Alaska) will join them, with Roe v. Wade hanging in the balance. However, the Democrats could lose three of their 49, as they did when Heidi Heitkamp (North Dakota), Joe Manchin (West Virginia), and Joe Donnelly (Indiana) supported Trump’s nomination of Justice Neil Gorsuch last year. The numbers are by no means encouraging for the Democrats. There is no agreement among Senate Dems on more drastic measures to slow down the confirmation process, so Trump’s youthful nominee — all the finalists are in their 40s or 50s — is expected to be our next Supreme Court justice, tilting the court to the right for decades.
Maybe we shouldn’t focus on Trump’s second Supreme Court appointment but instead look at his first, Gorsuch. On February 13, 2016, Justice Antonin Scalia died unexpectedly, creating a vacancy on the court that was President Obama’s to fill, in accordance with Article II, Section 2, Clause 2 of the Constitution. The president has the power to nominate “Judges of the Supreme Court” and with the advice and consent of the Senate, appoint public officials, including Supreme Court justices. This power given to the president is a plenary power, meaning it is a power granted in absolute terms with no review or limitation on the exercise of that power.
On March 16, 2016, President Obama nominated Merrick Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit, to the Supreme Court. McConnell sprang into inaction, refusing to schedule hearings to begin the confirmation process. The good old boy from Kentucky would have none of it, claiming Obama was a second-term lame duck president and therefore the selection of the next Supreme Court justice must wait until the winner of the upcoming 2016 presidential election was sworn in on January 20, 2017. According to Mitch, the people had to decide. Nowhere in the Constitution does it say anything remotely like this. McConnell crossed his fingers, ignored Russian interference in the 2016 presidential race, and got his wish — a Republican president. Gorsuch was nominated by Trump February 1, 2017, confirmed by the Senate April 7, and sworn in April 10. One seat down and one to go to ensure Republican control of the highest court in the land for decades to come. The vote for Gorsuch was 54-45. Due to the erosion of Senate rules brought to us by both parties, it now takes a simple majority to confirm a Supreme Court justice.
Now McConnell tells us it's full speed ahead to confirm Trump’s nomination to fill the vacancy left by Anthony Kennedy’s retirement. The Democrats rightfully bring up the "McConnell Rule" of waiting for the people to decide in an election year. McConnell points out his rule is only good for presidential election years, not midterm elections that will determine the makeup of the body voting to confirm or not confirm the president’s nominee. Never mind that Trump is a minority president who lost the popular election by almost 3 million votes or that he’s the subject of a special counsel’s investigation looking into the very legitimacy of his presidency or that it’s only a four-month delay, whereas in the Obama-Garland matter it was a 10-month delay. Obama was a two-time majority president with a 10 million vote margin in 2008 and a 5 million vote margin in 2012 with no special counsel problem.
If McConnell applies his made-up rule to interfere with Obama’s constitutional right to appoint a Supreme Court justice with the advice and consent of the Senate and then rushes Trump’s nominee through the process in a pivotal election year, it is obvious the majority leader is misusing his power. Obama does have the legal standing to sue McConnell in federal court for such interference with his plenary power found in the Appointments Clause. After all, every day of the Trump administration takes us into uncharted territory. What would the remedy be? Removing Gorsuch and allowing Obama to make his rightful nomination. Of course, none of this could be accomplished before the midterm election, when the Senate just might change hands. It is interesting to note that the framers of the Constitution had concerns that members of Congress might exercise the appointment power to fill public offices with their supporters, so the executive was included in the process as a check on Congress. At first the power to appoint was solely in the hands of Congress, and then the debates began.
We likely know what will happen next week. The one question that remains: Will the Democrats fight like hell to stop Gorsuch II?