When it comes to the next Supreme Court justice, the November elections don’t matter. By the time the 116th Congress meets on January 3, 2019, the bench will already be loaded.
Donald Trump and Mitch McConnell have until the holiday recess at the end of this year to select, nominate and confirm the next Associate Justice of the Supreme Court. McConnell needs only 51 votes to confirm. He can even lose two Senators; Pence will break a tie and deliver the goods.
Last November, the Donald delivered a list of 25 candidates for future court vacancies. To give you and idea of what you might expect, I created a map showing where the candidates are from.
There are no candidates from the First, Second and Ninth Circuits. That means nobody from Boston, New York or San Francisco. The Ninth Circuit is known for its more progressive rulings and that outweighs the several conservative states in the circuit.
The candidate from the District of Columbia Circuit is Brett Kavanaugh, considered to be a top pick by some.
Senator Mike Lee of Utah is also chosen as a favorite, but there is one problem: Lee is a conservative Republican who isn’t up for reelection until 2022. Utah would no doubt send another Republican to replace Lee, but why rock the boat and risk losing a solid vote you already have?
It’s not a question of conservative or liberal. It’s only a question of how conservative the court will be.
The news gets worse. Even if Ruth Bader Ginsberg can stay healthy and on the bench for another two years, she and her allies are unlikely to be able to preserve some past victories. The women Trump has picked are not going to help preserve women’s reproductive rights, including Roe v. Wade. There won’t be an end to Citizens United, the erosion of voting rights, challenges for LGBQT individuals or environmental losses. Labor is screwed. Gun control? Right out the window (one candidate is on record as saying the late Justice Antonin Scalia was too narrow in his definition of gun rights in District of Columbia v. Heller).
While the November elections are important, Democratic majorities in the House and Senate aren’t going to be able to stem the bleeding. It’s mathematically impossible for the Democrats to get enough seats in the Senate to override a veto or convict for impeachment. Even if the Democrats flip every open seat and don’t lose a single one, they still come up short. The Democrats need only to flip 18 seats and fill the seven current vacancies to regain control of the House, but they need to fill the vacancies and flip 90 without a single loss to be veto-proof. So the House could vote to impeach, which only requires a majority, but it would be tough to get enough GOP votes in the Senate to convict and remove Trump from office.
So even if the Democrats come up roses in November, it’s still going to be a tough two years for liberals and progressives. Just ask former President Obama about his last two years in office. (This most likely would also have been Hillary Clinton’s fate had she been elected. The Republican-controlled Senate would have been perfectly happy to see the Supreme Court down to eight, or even seven, members. Anything she wanted would have run into a wall of opposition in the House and Senate and she would have spent the last two years spinning her wheels, giving the Republicans plenty of opportunities to portray her as weak and ineffective. On the other hand, we might not look like such a bunch of jerks to the rest of the world.)
So the strategy has to really focus on 2020. It also has to focus on the Democratic Party getting its collective excreta together and decide what it wants to be if it wants to be relevant. The wins in the Senate this November are good through 2024. It might be possible to prevent Trump from adding yet another conservative to the Supreme Court if something were to happen to Justice Ginsberg or Justice Breyer. It’s bad enough with five to four, it’s going to be really difficult if it’s six to three.