Democrats are botching Supreme Court politics

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Albert R. Hunt, Contributor

As President Donald Trump names his Supreme Court nominee, disgruntled Democrats are carping at Senate Republican leader Mitch McConnell for his cheap politics in denying even a vote on their highly qualified pick in 2016.


A year ago, Senate Democratic leader Chuck Schumer spearheaded a filibuster against Neil Gorsuch, nominated by Trump to succeed the late Justice Antonin Scalia. Predictably, McConnell changed the rules on a party line vote, so that Gorsuch could be confirmed by a majority vote instead of needing 60 supporters as the Senate had previously required.

If Democrats had bowed to the inevitable Gorsuch confirmation, allowing a doctrinaire conservative to replace another doctrinaire conservative, they would now be in a stronger position to block a replacement for the retiring Justice Anthony Kennedy, the court's swing vote. Had the old rules been left in place, one Republican defector would have the power to stop the change needed to confirm a justice by simple majority.

Democrats also paved the way for McConnell's gambit in 2013, when they held a Senate majority. That was when Democratic leader Harry Reid changed the rules to let a majority vote confirm lower-court and executive-branch appointees. That made it possible for Democrats to curtail endless Republican filibusters against nominations by President Barack Obama, but it also opened a door for McConnell.

The result is likely to be a Supreme Court dominated by conservatives for a decade or more.

Democrats are compounding their past miscalculations by making today's fight almost exclusively about abortion. This diminishes other critical issues like voting rights, affirmative action, partisan gerrymandering, disability rights and a check on executive excesses.

Democratic strategy amounts to hoping that they can persuade the Maine Republican senator and abortion-rights supporter Susan Collins to vote against a nominee who would overturn Roe vs. Wade, the 1973 Supreme Court decision giving abortion constitutional protection.

This is delusional. Collins will not be the 50th vote against a Trump nominee. And no nominee will provide the ammunition Collins would need for such a vote by saying in public how he or she would rule on Roe vs. Wade or any other specific case.

Further, a new conservative court majority intent on restricting abortion wouldn't need to overturn Roe, which would leave abortion laws to the states, but could effectively end abortion rights by approving restrictions that limit availability and set up medical and emotional roadblocks for doctors and women.

The latest data available, according to the Guttmacher Institute, a research and policy advocate for reproductive rights, shows that three-quarters of women getting abortions live below or near the poverty level, and three in five are members of minority groups. These are the ones who would be most affected by a harsher crackdown on abortion rights, which would accelerate trends that make it easy to get an abortion for those who have money yet harder and harder for those who don't.

By making abortion the centerpiece of a campaign against the Trump nominee, the advantage of energizing the party's liberal base is offset by putting some of the Senate's most endangered Democratic incumbents on the spot. They're the ones representing conservative states where anti-abortion politicians tend to do well.

The Gallup Poll over the last dozen years has consistently shown that a majority of Americans want abortions to be legal, but with conditions. On average, a little more than one-fourth favor unrestricted abortion rights and about 20 percent want to ban all abortions. Asked if they're "pro-choice" or "pro-life," voters split evenly. In conservative states like West Virginia and Indiana, which each have one Democratic senator, the side in favor of abortion rights is in the minority.

Abortion politics has distorted Senate confirmation rules, which deserve reconsideration irrespective of any particular issue. In the 1970s, the Senate changed the threshold for ending a filibuster from two-thirds to 60 votes in the 100-person body, a constructive change. There's a good argument for requiring only a majority vote for confirmation of executive-branch appointees, whose activities and budgets are subject to congressional oversight.

But federal judges are lifetime appointments with little accountability. They should face a higher confirmation bar, especially Supreme Court nominees.

Democrats not only are powerless to win the current Supreme Court fight, they're in danger of losing more of them soon. The two oldest justices are liberals; Ruth Bader Ginsburg is 85 and Stephen Breyer is 79. The oldest in the conservative bloc, Clarence Thomas, is 70.

Maybe that'll be a reminder that short-term miscalculations can have long-term consequences.

Albert R. Hunt is a columnist for Bloomberg.

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