The Short List? Deciding the SCOTUS Nominee

Tea leaves, prognostications, wild guesses, and predictions sure to go wrong. Everyone can play in the “Who will be the next justice for the Supreme Court of the United States?” While President Trump mulls over what will be his second pick for SCOTUS, and before delving into the myriad of predictions, let’s go back a bit to The White House’s “official list” as it stood a few months ago.

Amy Coney Barrett of Indiana, U.S. Court of Appeals for the Seventh Circuit
Keith Blackwell of Georgia, Supreme Court of Georgia
Charles Canady of Florida, Supreme Court of Florida
Steven Colloton of Iowa, U.S. Court of Appeals for the Eighth Circuit
Allison Eid of Colorado, U.S. Court of Appeals for the Tenth Circuit
Britt Grant of Georgia, Supreme Court of Georgia
Raymond Gruender of Missouri, U.S. Court of Appeals for the Eighth Circuit
Thomas Hardiman of Pennsylvania, U.S. Court of Appeals for the Third Circuit
Brett Kavanaugh of Maryland, U.S. Court of Appeals for the District of Columbia Circuit
Raymond Kethledge of Michigan, U.S. Court of Appeals for the Sixth Circuit
Joan Larsen of Michigan, U.S. Court of Appeals for the Sixth Circuit
Mike Lee of Utah, United States Senator
Thomas Lee of Utah, Supreme Court of Utah
Edward Mansfield of Iowa, Supreme Court of Iowa
Federico Moreno of Florida, U.S. District Court for the Southern District of Florida
Kevin Newsom of Alabama, U.S. Court of Appeals for the Eleventh Circuit
William Pryor of Alabama, U.S. Court of Appeals for the Eleventh Circuit
Margaret Ryan of Virginia, U.S. Court of Appeals for the Armed Forces
David Stras of Minnesota, U.S. Court of Appeals for the Eighth Circuit
Diane Sykes of Wisconsin, U.S. Court of Appeals for the Seventh Circuit
Amul Thapar of Kentucky, U.S. Court of Appeals for the Sixth Circuit
Timothy Tymkovich of Colorado, U.S. Court of Appeals for the Tenth Circuit
Robert Young of Michigan, Supreme Court of Michigan (Ret.)
Don Willett of Texas, Supreme Court of Texas
Patrick Wyrick of Oklahoma, Supreme Court of Oklahoma

The administration having a list of potential SCOTUS nominees started back during the Trump campaign, when the death of Antonin Scalia brought the issue of Supreme Court vacancies to the fore, and then-candidate Trump looked to reassure a leary right that he would please them with a pick.

That pick went to Niel Gorsuch, after Senate Majority leader Mitch McConnell blocked then-President Obama’s nominee Merrick Garland. Most of the right has been pleased with Gorsuch thus far, and many on left still feel it is a “stolen seat.”

So now that Anthony Kennedy will be stepping aside July 31st, President Trump mulls a replacement as Democrats again bring up the way the Garland nomination was handled. The problem, as CNN’s The Point points out, is there is little beyond rhetoric the Democrats can do about it:

1. They don’t control the Senate: The majority leader of the Senate sets the schedule. And Senate Majority Leader Mitch McConnell made very clear his plan during remarks on the floor after the Kennedy news broke.
“The Senate stands ready to fulfill its constitutional role by offering advice and consent on President Trump’s nominee to fill this vacancy,” said McConnell. “We will vote to confirm Justice Kennedy’s successor this fall.”

2. Senate Republicans only need 50 votes: After Senate Democrats changed the rules to allow simple majorities to confirm judges below the Supreme Court level earlier this decade, McConnell pushed through a measure that made it a 50-vote threshold to confirm judges to the highest court in the country as well. (McConnell did so after Democrats held together and blocked consideration of the nomination of Neil Gorsuch in the spring of 2017.)
What that rule change means is that if all 51 Republicans support Trump’s court pick, that person will be confirmed. But a totally unified vote would depend on the likes of Sen Susan Collins (R-Maine) and Sen. Lisa Murkowski (R-Alaska), who have publicly trumped Trump in the past, staying in line behind party orthodoxy.

3. The 2018 map: There are 10 Democrats up for re-election in states that Trump won in 2016; five of those members — Sens. Joe Donnelly (Indiana), Claire McCaskill (Missouri), Jon Tester (Montana), Heidi Heitkamp (North Dakota) and Joe Manchin (West Virginia) represent states that Trump carried by double digits.
It’s no coincidence that Heitkamp, Donnelly and Manchin were the only three Democrats who voted for Gorsuch’s confirmation last year. They will be under even more pressure to support Trump’s eventual pick this time, given that the November midterms are looming.

That 50 vote issue was bound to cause this exact situation, as The Atlantic recaps for us:

A little over three years ago, Senator Mitch McConnell stood on the Senate floor and issued a warning to the Democrats who then controlled the majority.

“I say to my friends on the other side of the aisle, you’ll regret this,” McConnell, then the minority leader, told them. “And you may regret it a lot sooner than you think.”

At the urging of Majority Leader Harry Reid, Democrats had just voted along strict party lines to change the rules of the Senate, deploying what had become known in Washington as “the nuclear option.” McConnell and his Republican colleagues were furious. Under the new rules, presidential nominees for all executive-branch position—including the Cabinet—and judicial vacancies below the Supreme Court could advance with a simple majority of 51 votes. The rules for legislation were untouched, but the 60-vote threshold for overcoming a filibuster on nearly all nominations was dead.

As Donald Trump prepares to assume the presidency this afternoon flanked by Republican majorities in Congress, McConnell’s warning is looking more and more prescient. Trump may win Senate confirmation of his entire Cabinet, and while Democrats will oppose many of his nominees, it was their vote in November 2013 that helped pave the way for their success.

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