Party could use same tactics Republicans used against Obama’s pick in what could be ‘the biggest nomination fight since Clarence Thomas’

Democrats are ready to fight fire with fire in what promises to be an extraordinary political battle over Donald Trump’s choice to fill a year-long vacancy on the US supreme court.

Still bitter over Republicans’ refusal to consider former president Obama’s supreme court nominee, Merrick Garland, following the death of Antonin Scalia last February, Democrats are now in a position to use the same tactics against Trump’s nominee.

Supreme court shortlist: Trump's three potential nominees emerge Read more

“This is going to be the biggest nomination fight since Clarence Thomas – and that’s if the nominee comes through the door scrubbed and clean as possible,” said Jeff Hauser, director of Revolving Door Project, referring to the controversial 1991 hearing which saw the nominee accused for sexual harassment.

“Given the bad blood between the parties, the protests, the growing resistance to Trump, we’re going to see more activism, more money spent around this nomination. Records are going to be set by every metric.”

Trump said on Twitter on Monday morning that he would announce his choice for a lifetime appointment to the supreme court during a live broadcast from the White House at 8pm on Tuesday. He has pledged to pick a “truly great” justice who is “pro-life” and has a conservative record.

Trump’s announcement follows a turbulent start to his presidency that saw global protests around the world, demonstrations at airports and legal action. Democrats are under pressure from liberals to block Trump’s nominee by any means possible.

The Senate minority leader, Chuck Schumer, has vowed to fight “tooth and nail” to keep the vacancy open if Trump nominates a justice who is considered outside the “mainstream”. On Monday, Senator Jeff Merkley, a Democrat of Oregon, said he and the rest of his party intended to stonewall Trump’s nominee regardless of whom the president nominated.

Later on Monday, several Senate Democrats stressed that they would wait and see whom Trump nominates before making a decision, noting his tendency to change his mind and surprise observers.

“I am going to view the merits of whoever is nominated to the supreme court,” Senator Richard Blumenthal, a Democrat from Connecticut, said. “But obviously these court orders that have blocked the Trump executive actions simply demonstrate again how important the courts are in enforcing the rule of law against an apparently lawless administration.”

Senator Cory Booker, a Democrat from New Jersey, said he would be “obliged” to filibuster a justice who was outside the “mainstream”. Unless Republicans change the rules, a supreme court nominee needs 60 votes to be approved. If all Republicans support the nominee, they would still need to secure eight Democratic votes.

If Democrats refuse to budge, Republicans, who control the Senate, could change the rules to require only a simple majority vote to confirm a supreme court justice. When Democrats were in control, the party elected to limit the 60-vote super-majority rule – a tactic known as the “nuclear option” – as a way to circumvent the partisan gridlock and confirm cabinet posts and federal judgeships. However, the need for 60 votes remains in place for supreme court nominations.

Senator Joe Manchin, a Democrat from conservative West Virginia who faces a tough re-election in 2018, signaled that he might break a Democratic blockade against the nominee.

“I’m not a filibuster kind of guy,” Manchin told reporters on Monday.

Liberal groups are mobilizing for what will probably be among the most ferociously fought and well-financed supreme court confirmations in history. They will face deep-pocketed conservative opponents, who will fund attack advertising to train their fire on Democratic senators in conservative states like West Virginia.



“This is going to be a huge fight over the country, as it should be,” said Marge Baker, executive vice-president of the progressive group People For the American Way.

She added: “The events of the last week demonstrate how important it is to have open and fair-minded courts. Judging by the list of folks in the running for the nomination, that is not what we have.”

Trump’s shortlist of three federal judges includes Neil Gorsuch, Thomas Hardiman and Bill Pryor, according to multiple reports. The potential nominees, all appointed by George W Bush, were selected from a slate of justices approved by conservative legal groups.

A federal judge on the 10th circuit court of appeals in Denver, Gorsuch believes the constitution should be interpreted as the founding fathers intended, an approach Scalia championed. Gorsuch is a believer in religious freedom and sided with the Christian organizations in a case about whether the Affordable Care Act could compel them to provide contraceptives under insurance cover.

Hardiman, who sits on the third circuit court of appeals in Philadelphia, has advanced conservative interpretations of the law, particularly in “law and order” cases touching on issues such as sentencing guidelines and the death penalty. In a dissent, Hardiman argued that the first amendment did not grant the right to film police officers.

A former attorney general of Alabama who sits on the 11th circuit court of appeals in Atlanta, Pryor is a vehement opponent of abortion, once describing the supreme court decision to legalize abortion as the “worst abomination in the history of constitutional law” and wrote that it had “led to the slaughter of millions of innocent unborn children”.

“I think in my mind I know who it is,” Trump told Republicans earlier this month. “I think you’re going to be very, very excited.”

Trump and congressional Republicans are determined to push through a nominee to restore the conservative majority that existed before Scalia’s death. The court is currently split 4-4 along partisan lines.

On Monday, the White House press secretary, Sean Spicer, accused Democrats of politicizing the process.

“Before they’ve even heard who this individual is you’ve got some of them saying absolutely no,” Spicer said during the daily press briefing. “That just shows you that it’s all about politics. It’s not about qualifications.”

But Democrats can simply point to recent history as precedent. Within hours of Scalia’s death in February 2016, the Senate majority leader, Mitch McConnell, announced that the vacancy should be filled by the next president as opposed to the outgoing one.

Senator Susan Collins, a Republican from Maine, who opposed her party’s blockade against Garland, said it was curious that Democrats would oppose the nominee before knowing who it is.

“What if the nominee – in an irony of ironies – is Merrick Garland?” Collins said with a laugh. “Very unlikely – but what if?”