Democrats Must Not Block Trump’s Supreme Court Nominee

The US Supreme Court (KAREN BLEIER/AFP/Getty Images)

Blocking Trump’s nominee is futile, and a will only further polarise American politics.

[Disclaimer: This article no longer represents the views of the author.]

With Trump to announce his Supreme Court nominee next week, Democrats in the Senate have vowed to fight the nominee ‘with everything [they’ve] got’. Chuck Schumer said in January that ‘It’s hard for me to imagine a nominee that Donald Trump would choose that would get Republican support that we could support.’

No one will fault the Democrats for acting unfairly. Conservatives have had a majority on the court since 1971, rendering it a permanent base of right-wing power. Justice Scalia’s death in 2016 at long last offered liberals an opportunity to take control of the Court, but Republicans in Congress refused to confirm Obama’s nominee, rejecting his legitimate right to do so as President.

With Republicans lacking the 60 seats in the Senate necessary to block a filibuster, Democrats could employ this dubious technique, which Republicans used extensively during the Obama era.

Furthermore, there is no doubt that Trump’s nominee will be a threat to civil liberties. One of the top contenders, Jim Pryor, is a close friend of Attorney-General Jeff Sessions, himself a notorious enemy of civil rights, and called Roe vs. Wade ‘the worst abomination of constitutional law’.

But while Democrats should vet the candidate as they would any other, they should not attempt to block the nominee out of hand.

Firstly, this would be a futile battle. When Republicans fought Obama’s nominee, they had two important assets that the Democrats now lack. They had time, only needing to stall the nomination process for a year before a new President would take power. They also had a majority in both houses of Congress, meaning they didn’t need to rely on tactics like the filibuster to block the nomination.

Democrats do not have time on their side. Even assuming that Trump does not win a second term, which is increasingly unlikely given the ever smaller chance that the 2020 election will be free and fair, the Democrats must stall for four years in order to successfully block Trump’s Supreme Court pick.

Furthermore, lacking majorities in Congress means that Democrats will have to rely on filibusters to block the nomination. But since they lack majorities, Republicans will be able to respond by changing the rules of Supreme Court nominations in order to prevent filibustering, just as Democrats did for lower-court nominations under Obama. Trump will get his nominee, one way or another.

At a time when the Democratic party is in such dire straits in every tier of government, wasting resources on a hopeless cause, no matter how valiant, is poor strategy.

Secondly, adopting the de-legitimising tactics of the Republican party reinforces the dangerous polarisation of American politics. If hardline Republicans can reasonably portray the Democrats as failing to respect the political legitimacy of the elected President, no matter how morally illegitimate he may be or how hypocritical their accusations, Democrats who wish to preach mutual respect will be preaching from an impoverished position.

If American politics is to be mended, and it must be, one side must adopt the painful strategy of providing the first gesture of good will. Revd. Dr. Martin Luther King Jr. said that ‘darkness cannot drive out darkness; only light can do that.’ There is much more hard-nosed strategic truth to this statement than is usually acknowledged.

In military strategy, a threat based on desire for expansion or plunder, like Germany’s invasion of Poland, is best defeated with a fierce and violent response. A threat which is based on fear, however, like the mutual hostilities between Iran and Israel, is best defeated by unilateral acts of compromise and forgiveness.

Just as many Democrats view Republican rule as a severe threat to their wellbeing, many Republicans see the same in Democratic rule. The latter view may not be correct. The legitimacy of the fear conservatives hold about the expansion of gay rights, for instance, is not comparable to the fears of Trump held by Muslim- or African-Americans. Nonetheless, their fear is real and a real engine of Trump’s rise to power.

If each side insists on utilising its right to retaliation, the cycle of mutual delegitimisation continues and the unravelling of American democracy can only get worse.