The Slatest

Democrats’ Options for Blocking a SCOTUS Nominee, Ranked From Least to Most Likely to Be Successful

Schumer and McConnell walk side by side as McConnell speaks.
Senate Minority Leader Chuck Schumer and Senate Majority Leader Mitch McConnell at the Capitol on Feb. 7.
Chip Somodevilla/Getty Images

Supreme Court Justice Anthony Kennedy is retiring, leaving an opening for President Donald Trump (LOL) to appoint (presumably) another right-wing SCOTUS judge in the vein of Neil Gorsuch. Some Democrats, remembering the eight-month blockade that Mitch McConnell led against Obama nominee Merrick Garland in 2016, have been grumbling about stalling Trump’s pick until after the midterms, when they might (conceivably) have a Senate majority. Democrats do not hold a Senate majority now, though, so they’ll need to be creative if they actually want to block Judge Jeanine (or whoever) from being seated before November. What follows are all the ways I’ve seen suggested for how they could do this , ranked from least to most likely to be successful.

8 (tie). Insist that no justice should be seated before the Robert Mueller special counsel investigation is resolved. There’s some logic to this idea, which has been brought up by New Jersey Sen. Cory Booker, because it’s plausible that SCOTUS will soon have to rule on Mueller-related legal disputes that involve Trump or one of his close advisers. That process would be compromised if Trump intentionally chooses someone who he knows/believes will rule in his favor. But the issue could be sidestepped if a nominee promises to recuse herself or himself from any Mueller cases—and, moreover, the next substantive vote Mitch McConnell’s Senate makes to protect the integrity of Mueller’s investigation will be the first.

8 (tie). Ask Trump to nominate a centrist. Democratic North Dakota Sen. Heidi Heitkamp, who’s running for re-election this year in a red state, tried this tack in a meeting with POTUS:

Trump’s nominee selection process is being led by Leonard Leo of the mega-conservative Federalist Society. It will not result in the nomination of a centrist.

8 (tie). Grassroots pressure on swing votes. This was suggested by Slate’s Rick Hasen, the idea being that enormous public pressure might convince pro-choice Republican Sens. Susan Collins and Lisa Murkowski to vote “no” on a nominee who would be expected to overturn Roe v. Wade. (There are 51 Republicans in the Senate, so Collins and Murkowski defections would leave the party short of a majority.) The thing about being a pro-choice Republican, though, is that it includes the word Republican, which means that Collins and Murkowski will probably like many/most of the nominee’s other positions; they also both voted to confirm Gorsuch despite his record of opposition to abortion rights.

8 (tie). Mass migration to red states. This is my colleague Mark Joseph Stern’s long-term suggestion for the Democratic Party: Find a billionaire who will pay hundreds of thousands of coastal liberals to move to states like Wyoming, Montana, and Idaho, permanently turning those states blue and changing the balance of power in the Senate. It’s a great, plausible plan, which has no flaws and is guaranteed to work, but it’s not possible to carry it out before a vote on the nominee because people won’t be able to move in time. They have leases and social commitments for Labor Day weekend and such.

8 (tie). Deny Republicans a quorum in the Senate. Vox published an interesting article by University of Miami political science professor Gregory Koger last week about how Senate Democrats might be able to use the chamber’s rules of procedure to halt its functioning until McConnell agreed to hold votes on certain subjects. Koger was writing about this tactic as a way to change McConnell’s political calculations about whether to allow votes on issues like family separation, though, and emphasized to me in an email that “quorum-breaking is not ‘foolproof.’ ” In other words, it would be a tactic of inconvenience, not an insurmountable obstacle to any Republican action, and Koger says that McConnell could likely engineer a SCOTUS vote with procedural responses of his own.

8 (tie). Shame McConnell for the hypocrisy of holding a vote on Trump’s nominee in an election year after having blocked Obama’s nominee in an election year. This will not work because McConnell doesn’t care.

8 (tie). Count on Republican Arizona Sen. Jeff Flake to follow through on his vow to block Trump’s judicial nominees until the Senate votes on legislation that would restrict the president’s ability to impose tariffs. Flake, in a demonstration of quintessential Flake-itude, made this threat on Sunday before saying on Thursday that it didn’t apply to Supreme Court justices. Oh well!

1. Hope that NASA discovers an asteroid plummeting so rapidly toward Earth that all the people of the planet must set aside their feuds and hatreds in order to equip and support a ragtag crew of astronauts and explosives experts who will attempt to land on the very face of the apocalyptic rock itself in order to destroy it. It could, theoretically, happen.

So, there you have it: They’re all tied for least likely to be successful after what I’m calling the “Plot of 1998’s Armageddon Option”—and, Democrats, for the love of God please do not attempt to “work across the aisle” for “bipartisan solutions” by agreeing to the moderate-supported “Plot of 1998’s Deep Impact Compromise,” because, in that movie, almost everyone on Earth ends up dying.

Good luck!