Senator Schumer on Capitol Hill, November 16, 2016. (Reuters photo: Carlos Barria)

He knows that many of his voters chose him for his promise to steer the Court rightward.

Chuck Schumer, the incoming leader of Senate Democrats, warned Sunday on NBC’s Meet the Press that any Supreme Court nominee of Donald Trump’s will be filibustered if he or she isn’t “mainstream.”

“If he doesn’t nominate a mainstream candidate, we’re going to go at him with everything we have . . . go at the candidate with everything we’ve got because this is so, so important,” Schumer said. He then falsely claimed that all four of the nominees put forth by President Obama and President Bush had won wide bipartisan support. Not true. Justice Samuel Alito was confirmed in 2006 with the votes of only four out of 44 Senate Democrats.


Schumer’s threat is real. During the debate on Alito, Harry Reid, who was then the Democratic leader of the House, and then-senator Barack Obama attempted a filibuster against him.

But far from being intimidated, Donald Trump is likely to relish such a fight. During the annual meeting of the Federalist Society, the nation’s premier conservative and libertarian legal group, a group of its chapter presidents got an inside look at some of Trump’s thinking. Leonard Leo, the Federalist Society’s executive vice president and a leading adviser to Republicans on judicial nominees, told the group that Trump isn’t going to be dictated to.

Fresh from a meeting with Trump in New York last Wednesday, Leo said that Trump knows the importance of the Supreme Court to the voters who elected him. He noted that exit polls showed that 21 percent of Americans said the Supreme Court was “the most important factor” in their decision about which presidential candidate to support. By a ratio of three to two, such voters went for Trump over Hillary Clinton. “Mr. Trump has a plane and double-digit victories where Senate Democrats are up for reelection,” Leo told the group. “Obstructing his nominees will be a political loser.”



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Indeed, Democrats have 25 of their 48 Senate seats up before voters in 2018. Many are from states Obama lost twice and Clinton once: Missouri, Montana, North Dakota, and West Virginia. Democrat Joe Donnelly of Indiana knows that his state rejected Obama in his reelection in 2012, voted against Hillary, and is home to Mike Pence, the newly elected vice president–elect. Four other Democratic senators are from states Clinton lost: Florida, Ohio, Pennsylvania, and Wisconsin.

The prospect of a President Trump visiting their states and holding rallies to whip up support for his Supreme Court nominee would make many Democratic senators uncomfortable, especially if Trump supplemented his efforts with TV and social-media campaigns.


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Democrats should also be concerned that they may have boxed themselves in on the filibuster front. Harry Reid went on record last month, when he was banking on Clinton’s victory, to say that Democrats were prepared to scuttle the filibuster option for senators considering any Supreme Court nominee.

Reid explained his stance in an interview Talking Points Memo published October 24, under the headline “Harry Reid’s Parting Shot: Dems Will Nuke the Filibuster for SCOTUS”:

I really do believe that I have set the Senate so when I leave, we’re going to be able to get judges done with a majority. It takes only a simple majority anymore. And, it’s clear to me that if the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I’ve told ’em how and I’ve done it, not just talking about it. I did it in changing the rules of the Senate. It’ll have to be done again.



Snapping his fingers, Reid added, “They mess with the Supreme Court, it’ll be changed just like that in my opinion.”

Reid was joined by Schumer in blowing up the judicial nomination process in 2013, when Democrats ended the right to filibuster any nominee to federal appeals and district courts. By using this so-called nuclear option to push through nominees to lower courts, Democrats have opened the door to having a simple majority confirm a Supreme Court nominee.

Chuck Grassley had warned Democrats not to use the nuclear option in 2013 because it would blow up in their faces later.

Leo told the Federalist Society group that Republicans are prepared to extend the “nuclear option” to the Supreme Court. In a separate interview, he told me that Senate Judiciary Committee chairman Chuck Grassley had warned Democrats not to use the nuclear option in 2013 because it would blow up in their faces later. “That appears it could be coming true now,” Leo said.

Indeed, Senate Republicans say that Democrats have little to complain about after they manipulated the rules for lower-court judicial nominees. “Democrats set the standard,” Senator Orrin Hatch, a Utah Republican, said this week. “They really screwed up the rules. Frankly, they did it for pure political purposes. Republicans are not limited now.”

John Cornyn, the Senate Majority whip, agreed with Hatch, saying that Democrats “just need to accept that reality.”

Some legal historians have lamented the fact that Supreme Court judicial nominations have become so partisan and politicized. They note that for much of our history, Supreme Court nominees rarely testified during their confirmation hearings and were rarely the subject of contentious fights. But beginning in the 1960s, the Court set itself up as an independent law-making body that in many cases alters the very fabric of American life, from abortion to the rights of state and local governments.

#related#“A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy,” the late Justice Antonin Scalia warned in his dissent in the Court’s 2015 gay-marriage case, Obergefell v. Hodges.

By cheering on the growth of the Supreme Court’s unaccountable power, liberals have so politicized the court that they will now face a debate about the Court’s future direction that will be more political than our Founding Fathers intended it to be. And this time, at least as far as popular opinion, they have the weaker argument.