President Donald Trump has Democrats fuming after promising that, given the chance, he would fill a Supreme Court vacancy during the 2020 election season.
“Would I do that? Of course,” Trump told The Hill on Monday.
Ready to pull the trigger
Democrats are still smarting from Senate Republicans’ refusal to hold confirmation hearings for Judge Merrick Garland, President Barack Obama’s nominee to replace the late Justice Antonin Scalia in 2016. However, the last time a Republican-controlled Senate nominated a Democratic president’s Supreme Court nominee was Rufus Peckham in 1895.
But that wasn’t the only problem with Obama’s nominee. The Democratic president was trying to fill a vacancy during his final year in office.
“I believe the overwhelming view of the Republican Conference in the Senate is that this nomination should not be filled, this vacancy should not be filled by this lame duck president,” Senate Majority Leader Mitch McConnell said following Scalia’s death.
Democrats have focused on this latter point of contention — that Republicans refused to appoint Garland during Obama’s final year in office — to suggest that doing the same under Trump would be hypocritical. However, Trump explained the actual reason why Garland was never nominated, and why filling a vacancy in the high court in 2020 would be different.
“They couldn’t get him approved. That’s the other problem because they didn’t have the Senate. If they had the Senate, they would have done it,” Trump said, referring to Democrats in 2016.
“I mean, we have the Senate. We have a great Senate. We have great people. If we could get him approved, I would definitely do it. No, I’d do it a lot sooner than that. I’d do it. If there were three days left, I’d put somebody up hoping that I could get ’em done in three days, okay?” Trump said.
Supreme Court makeover
One of Trump’s greatest achievements as president has been to change the ideological makeup of the Supreme Court, possibly for the next generation to come. Besides appointing Justices Neil Gorsuch and Brett Kavanaugh, Trump has confirmed dozens of conservative judges at the district level.
But it hasn’t been easy. After waiting for Garland’s nomination to expire with the 113th Congress, the Senate voted 54 to 45 to confirm Gorsuch.
Kavanaugh faced a nasty confirmation battle after several women came forward with allegations of sexual misconduct. After his accusers failed to corroborate their allegations, Kavanaugh was confirmed by the narrow margin of 50 to 48.
Asked last month in his home state of Kentucky if Republicans would consider filling a Supreme Court vacancy next year, McConnell was clear: “Oh, we’d fill it,” he said, eliciting laughter from the audience.
Other GOP senators on the Judiciary Committee are less convinced. For instance, Sen. Lindsey Graham (R-SC), who chairs the committee, has pledged to wait until after the 2020 race to confirm a nominee.
“If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait until the next election,” Graham said in 2018.
Anything is possible
With two of the court’s nine justices in their 80s, anything is possible, and Trump could very well find himself in a position to add a third conservative judge to the high court in 2020. Although progressives insist that this would be an act of pure hypocrisy, the fact is that they never stood a chance of nominating a liberal justice in 2016 with a Republican majority in the Senate.
Obama could have nominated a moderate judge, and Republicans would have held hearings to evaluate his suitability for the high court. But he didn’t — and now Trump is prepared to appoint a third conservative justice during his first term in office.
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