A top Democrat on the Senate Judiciary Committee admitted there is little his party can now do to stop Republicans from confirming a new nominee by President Trump to the Supreme Court before the November elections, saying he and his colleagues have no “triple-secret procedural trick” that can slow the process down.
“We’ve been through this recently with Justice [Brett] Kavanaugh and before that with Justice [Neil] Gorsuch, so if there were some triple-secret procedural trick that we could pull we would have been pretty negligent in not pulling it in those two earlier proceedings,” Sen. Sheldon Whitehouse, D-R.I., told the Yahoo News “Skullduggery” podcast. For GOP senators, “Unless you’ve gotten a hall pass so that everybody understands that you’re OK and this is not going to affect the outcome, this is like a tribal check-in and you’ve got to be on the team because if you’re not this is one of those no-going-back moments for you.”
With President Trump expected to announce his pick this weekend, Whitehouse said he believes Republicans will move quickly and be positioned to hold a vote before the election, possibly skipping an FBI background check and other standard vetting. When asked if the Senate rules allow for such tactics, Whitehouse said the rules can be easily amended to allow for skipping steps.
“They’re going to do whatever they need to,” he said. “There is no higher priority for Republicans in the Senate than to seize this Supreme Court seat.”
Whitehouse made the remarks hours after Sen. Mitt Romney, a Utah Republican who has bucked the president in the past, announced that he was open to the Senate voting on whomever Trump selects to replace the late Associate Justice Ruth Bader Ginsburg, who died last week following a battle with cancer. Romney was viewed by some Democrats as one of a handful of Republican senators who might defect and oppose Majority Leader Mitch McConnell’s determination to confirm a new nominee. But Romney in a statement Tuesday said: “If the nominee reaches the Senate floor, I intend to vote based upon their qualifications.”
Whitehouse recently released a study on “dark money” and how it is reshaping the federal judiciary. He asserts that corporations and billionaires have organized to funnel tens of millions of dollars in anonymous donations through nondisclosing advocacy groups in order to exert influence over which jurists are selected for vacant judgeships.
Whitehouse said this dark money will doubtless swing individual Republican senators to vote with the majority because “there’s a lot at stake and they’re going to fight hard and people like Lindsey Graham are gonna take a look at that torrent of pressure and make their decisions.”
In 2016, Republicans refused to consider Obama Supreme Court nominee Merrick Garland on the grounds that it was an election year. At the time Senator Graham, now the head of the Senate Judiciary Committee, pledged that Democrats could “use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term you can say Lindsey Graham said, ‘Let’s let the next president, whoever it might be, make that nomination.’”
At the moment, only two Republican senators — Lisa Murkowski of Alaska and Susan Collins of Maine — have said they won’t support confirming a new nominee before the next presidential inauguration. With a 53-47 margin for the GOP in the Senate, Democrats would still need two more to block confirmation — and so far no others have stepped forward.
But even if Democrats could somehow find two more GOP defectors, that would still leave a Supreme Court with eight members, and a Republican majority, during a crucial period when the court could well be deciding litigation over the presidential election — as well as upcoming arguments over the fate of the Affordable Care Act. And with an additional conservative justice confirmed, “this could be the court that gets rid of Roe v. Wade now,” Whitehouse said. “This could be the court that wipes out Obamacare and cuts out preexisting conditions protection. Those are things that are very ripe and live before the court right now.”
Whitehouse said he sees a potential silver lining though — the Democratic base is getting fired up. He also said he believes many swing voters might be turned off by what could be seen as a power grab, particularly for those who remember how Republicans blocked Garland from a Senate vote.
“It is certainly conceivable that in a lot of these swing states there will be people who take a look at the flagrant hypocrisy that is being displayed here and the desperate effort to seize this seat on the Supreme Court and find something a little untoward in that,” Whitehouse said. “And that it affects their voting either because it makes them angry and makes them want to really get out and make sure their vote is counted or because it makes them think, ‘You know, this is a little bit too much. I think I’ll consider perhaps voting for the Democrat now instead of the Republican,’ if they’re in the middle.”
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