Buckle up, folks. If you did not like what the Supreme Court has done in the last few weeks on voting rights, public-sector unions, and Trump’s travel ban, things are going to get a whole lot worse now that Justice Anthony Kennedy is retiring and with conservative Chief Justice John Roberts about to become the new swing justice. There’s precious little Democrats can do, at least in the short term, either to stop the nomination of another clone of Justice Antonin Scalia, or to stop the political benefit President Donald Trump is likely to get from such an appointment. Fixing the Supreme Court will be a long-term project. In short order, I expect President Trump to take the safe route and nominate a stellar Scalia clone. My personal expectation is that Judge Brett Kavanaugh of the United States Court of Appeals for the D.C. Circuit is a likely pick. Trump has reportedly already said he intends to select the next justice from a previously circulated list of Federalist Society–approved judges. Following the playbook used for Justice Neil Gorsuch’s confirmation, the new nominee will be a very smart (likely white male) judge with impeccable credentials who can get up in front of the Senate Judiciary Committee and commit to absolutely nothing in terms of his future rulings.
Democrats have no cards to play here. You may remember that former Senate Majority Leader Harry Reid had killed the filibuster for all executive and judicial nominees except Supreme Court justices during Obama’s term. Then during the Gorsuch nomination fight, current Majority Leader Mitch McConnell extended that to Supreme Court nominees. This means it takes only a majority of votes to get a nominee through, and Republicans have such a 51–49 majority in the Senate.
This means even if all the Democrats voted no, there’s no filibuster and no stopping the nominee with their votes. And if you think that senators like Jeff Flake would buck Trump on a nominee like Kavanaugh, forget it. They may disagree with Trump about a lot of things, but not about hard-right judicial nominees.
The only political hope here is for massive street protests, like we saw with the initial Trump travel ba