Democrats Want to Fight Trump’s Supreme Court Pick. They Just Have No Power to Do It.

The party lacks the votes and mechanisms to stop an Anthony Kennedy replacement from being confirmed. And they know it.

Jonathan Ernst/Reuters

Senate Majority Leader Mitch McConnell (R-KY) on Wednesday vowed to hold a vote on Supreme Court Justice Anthony Kennedy’s successor this fall, setting up a contentious political battle ahead of the critical midterm elections.

But while Democrats insisted that Kennedy’s replacement should not be considered until after voters have their say in November, many members of the party acknowledged the ominous political reality they now confront. Democrats are powerless to stop President Donald Trump from getting his second justice on the nation’s highest court.

“They hold all the cards,” said Jim Manley, a top aide to former Senate Majority Leader Harry Reid (D-NV). “There’s not really anything left to say.”

News of Kennedy’s retirement sent shockwaves through the Capitol on Wednesday, coming just hours after the Supreme Court finished issuing rulings for this term. And within minutes of the announcement, attention turned to McConnell over what type of timeline he was envisioning for the consideration of Kennedy’s replacement.

The majority leader had refused to give President Barack Obama’s nominee, Merrick Garland, a hearing—let alone a vote—in the eight months leading up the 2016 election, on the grounds that voters had the right to weigh in on who should be choosing the nominee.

But the notion that McConnell would hit the pause button once more was always a pipe dream, considering his record pace during the Trump presidency of stacking the federal courts with conservatives. And in an emailed statement to The Daily Beast, his spokesman, Don Stewart, made it clear that McConnell believes there was no inconsistency in considering a nominee before the November contests.

“This is not a presidential election year,” Stewart said, drawing a distinction between the Garland nomination and the forthcoming one.

The replacement of Kennedy will have a profound impact on the course of U.S. policy for decades to come. Though the associate justice had sided consistently with conservatives during the latest round of cases, his vote was still been considered reliably centrist. And, according to Abner Greene, a constitutional law professor at Fordham University, the jurisprudence of whoever replaces him would potentially impact three massive areas of the law: gay rights, capital punishment, and abortion.

With those high stakes, Republicans under McConnell insisted that they, too, felt no compulsion to wait for voters to weigh in on the composition of the next Senate.

“We should move as rapidly as we responsibly can,” Sen. Lamar Alexander (R-TN) told The Daily Beast.

“I would think [Kennedy] would want to be replaced by a Republican president and a Republican Senate,” said Sen. Roy Blunt (R-MO), a member of Senate GOP leadership.

With a timeline set, Democrats are left with no procedural mechanisms to keep the seat vacant, with the threshold for confirming a nominee at a simple majority and Republicans holding 51 seats. That lack of a political arsenal was underscored by Senate Minority Leader Chuck Schumer’s (D-NY) statement on Wednesday, in which he invoked the standard McConnell applied to Garland but outlined no specific ways in which he could, or would, force a vote till after November.

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Instead, the party appears poised to mount an aggressive public-relations campaign, talking up the electoral consequences for Republicans should they confirm an ultra-conservative justice.

“People should understand that this nominee will be there for decades to come, for our lifetimes, and a good part of our children’s lifetimes,” Sen. Richard Blumenthal (D-CT) said. “And the consequences for our nation couldn’t be higher.”

Ron Klain, Vice President Joe Biden’s former chief of staff and someone who has shepherded court nominees through the Senate, said he imagined that the Supreme Court confirmation proceedings would be a major motivator for Democratic voters before the elections, in a way that Republican voters have often found judicial politics to be galvanizing.

“I do think this battle substantially raises the odds of a Democratic takeover of the Senate,” Klain said. “The party aggrieved by the Supreme Court votes on the Court as an issue. Until now, that has been Republican. Starting now, that will be Democrats.”

Though he wasn’t particularly bullish on the prospects of influencing Trump’s choice to replace Kennedy, Klain stressed that there were some political pressure points for Democrats to target. In particular, he called for lawmakers to frame the debate “squarely and firmly” around the future of abortion rights, to push hard on Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK)—both pro-choice Republicans—and to work with Sens. Jeff Flake (R-AZ) and Bob Corker (R-TN), critics of the president, “on keeping Trump in check.”

But even that would, potentially, not be enough. One plugged-in Democratic strategist with extensive connections on Capitol Hill cautioned that it should not be assumed that moderate Democratic senators would vote against Trump’s nominee, since supporting him or her could help demonstrate bipartisan credentials before an election. “Those… senators need to show some political courage,” the strategist said, naming three traditionally moderate members: Joe Manchin (D-WV), Heidi Heitkamp (D-ND) and Joe Donnelly (D-IN).

Already, the pressure for all Senate Democrats to toe the line is intense. Sen. Chris Murphy (D-CT) insisted that he would do everything in his power to stop a nominee. “I did not run for the Senate to grease the skids for radicals on the Supreme Court to decimate the rights of millions of Americans,” he exclaimed.

And Schumer’s deputy, Dick Durbin (D-IL), accused McConnell of applying “tortured logic” in pushing for a vote just “four months away from an election where the American people will decide the majority in the United States Senate.”

In the end, the words were sharp. But, as some conceded, they were just words.

“Based on the rules of the Senate there is isn’t much Senate Democrats can do even if they hold together, to defeat whoever Trump nominates,” said Manley. “But if that happens without a fight I think there maybe hell to pay in November with rank-and-file Democratic voters.”

—with additional reporting by Jackie Kucinich