Senator Chuck Schumer (D-NY) has earned the reputation of a tough-as-nails negotiator.
Freshly sworn in as Senate Minority Leader, Schumer sent an unmistakable message to incoming President Donald Trump about his party’s willingness to go to the mat over Supreme Court picks.
In a striking interview with MSNBC’s Rachel Maddow, Schumer didn’t mince words about his party’s intention to fight Trump every step of the way on his SCOTUS nominees.
Maddow raised the argument of Senator Jeff Merkley (D-OR) that the Republican Party “stole a Supreme Court seat,” which Schumer characterized as a “fair statement.” The MSNBC host then asked the NY Senator if there would be any consequences.
“Well, the consequences are going to be down the road, the consequences are going to be down the road,” Schumer said. “We are not going to settle on a Supreme Court nominee. If they don’t appoint someone who is really good, we’re going to oppose him tooth-and-nail.
Now then, they won’t have 60 votes to put in an out-of-the-mainstream nominee, and then they’ll have to make a choice: Change the rules… We are not going to make it easy on them to pick a Supreme Court justice.”
Schumer elaborated on what he considers to be an out-of-the-mainstream Supreme Court nominee.
“It’s hard for me to imagine, a nominee that Donald Trump would choose that would get Republican support, that we could support.”
Schumer then reassured Maddow that the Minority Leader would do his utmost to “hold the seat open.”
The New York Senator can be counted on to provide stern opposition to the Republican Party’s Supreme Court nominees, particularly if they’re perceived as threats to left-leaning social views or Obama legacy programs like the Affordable Care Act.
The Federalist points out ten times that Democrats have stonewalled Republican SCOTUS nominees. In 2007, Schumer vowed to fiercely oppose Bush appointments.
“We should not confirm any Bush nominee to the Supreme Court, except in extraordinary circumstances,” Schumer said to the liberal American Constitution Society. “They must prove by actions, not words, that they are in the mainstream rather than we have to prove that they are not.”
Even further back, the influential New York Senator adamantly refused to yield on confirming Bush appointment Charles Pickering to a federal appeals court in 2004.
“I’m prepared to do everything I can to stop the nomination of Justice Pickering,” Schumer said. “We can do a lot better.”
Once again, Schumer was a thorn in the side to Republicans when Carolyn Kuhl was nominated as a judge to the Ninth Circuit Court in 2004. Schumer vowed:
…”to hold nominations until the White House commits to stop abusing the advise and consent process.”
More recently, Schumer was involved in the Democratic Party’s objections to the GOP obstructing the Obama Supreme Court nomination of Merrick Garland. The Republican Party argued that the American people should determine the late conservative justice Antonin Scalia’s replacement.
“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President,” Senate Majority Leader Mitch McConnell argued in a statement after the passing of Scalia.
Interestingly, the Supreme Court can be held open with fewer than nine justices indefinitely, as Senator Ted Cruz pointed out during the Merrick Garland nomination process.
Amber Phillips of The Washington Post wrote that legal scholars agree with Senator Cruz:
First Sen. John McCain (R-Ariz.). Now Sen. Ted Cruz (R-Texas). As a Donald Trump loss looms likelier, two prominent senators have suggested in the past month that the Supreme Court could function just fine with eight justices — indefinitely.
Whether the court would be fine with eight is a matter of debate. But legal scholars tell me Cruz and McCain are right about two things: 1) There is precedent for the court to have more or less than nine justices, and 2) Senate Republicans could hold up a Supreme Court nominee indefinitely.
Regardless of the Democratic Party’s tactics, there are always risks to calculate when blocking a Supreme Court nomination, for any political party.
The Democratic Party has ten Senators up for re-election in 2018 in states that Donald Trump won. The Democratic Party can choose to obstruct Trump’s Supreme Court nominees, but ultimately, they will also have to answer to voters in the midterm elections.