Are Democrats focusing too much on Trump’s cabinet and costing themselves the Court? Over three years ago, Senate Democrats set a new precedent and a lower threshold for ending filibusters of administration nominees. Now, by waging prolonged lower-stakes battles over Trump’s cabinet nominees, they risk justifying Republicans extending that filibuster change to far more important Supreme Court nominations.
Over a month into his presidency, Donald Trump still has only two thirds of his cabinet confirmed. So far Trump’s scorecard reads fifteen in and seven waiting. Trump is well behind past presidents and the pace appears unlikely to quicken.
There are several reasons for the confirmations’ slow pace, but the main one is clear: Senate Democrats have delayed them, in some cases avoiding attending hearings in order to prevent nominations getting to the full Senate.
Democrats offer several reasons for their opposition.
They have called Trump’s nominees “historically unqualified.” Aside from substance, a revenge factor is also suspect. After all, less than four months ago, Senate Democrats thought they would win the Senate and be working with President Hillary Clinton.
There is also an advantage in slowing Republicans’ agenda. The more time Republicans spend on nominees, the less time they have to do — or undo — other things.
Finally, there is the Democratic base to consider. Already they are as opposed to Trump as the Tea Party ever was to Obama. Elected Democrats have no choice but listen. And Senate Democrats on the frontline against Trump, in the form of his nominees, had better be listening carefully. Senate Democrats who appear inattentive to Trump’s nominees may well receive the base’s attention in their next primary.
Yet no matter how convincing their reasons may be, Senate Democrats could be playing right into Republicans’ hands when it comes to far bigger fights over Supreme Court nominees.
In November 2013, then-Senate Majority Leader Harry Reid led 52 Democrats in fundamentally changing the Senate’s filibuster rules. Termed the “nuclear option,” it lowered the votes needed to end a filibuster of presidential nominees from 60 to a simple majority. However, that change did not apply to Supreme Court nominees.
Now less than four years later, there is a new majority, a new administration, an ideologically split Supreme Court, and a new nominee to it. This is where the real nomination wars will be fought.
When Democrats changed Senate filibuster rules, they justified it on the grounds of Republican obstruction. The last thing they should want to do now is provide Republicans the same justification.
Yet their tactics with Trump’s nominees, despite how justified Democrats may feel these to be, can appear that way — especially to those beyond their base. By clearly delaying cabinet nominees now, they risk the impression that obstruction is their only end. That may appeal to their base, but to win the really important wars, Democrats must appeal to a larger group.
Because of November’s election, non-Democrats will decide who fills the Supreme Court’s vacancies. Democrats now risk alienating and convincing them the “nuclear option’s” next step — extending it to Supreme Court nominees — is warranted.
While Democrats’ current cabinet strategy’s risk is great, its reward is comparatively small. All the cabinet nominees put together do not equate to a Supreme Court appointment’s importance. Few Americans could name a single cabinet nominee. Fewer still could identify the impact once confirmed. Neither holds true for a Supreme Court nominee.
Democrats are already vulnerable on the nuclear option. Their cabinet confirmation tactics expose them further. And their risk goes well beyond single Supreme Court nominee. It goes to Democrats’ broader strategy of delegitimizing Trump.
Democrats might have an opportunity in delegitimizing Trump. Trump’s favorability ratings were low throughout the campaign and his job approval ratings are largely low now. Democrats are hopeful they can capitalize on this in 2018’s midterm elections — just as Republicans did in 1994 and 2010 with Democratic presidents.
Democrats’ potential delegitimizing opportunity is threatened by their cabinet confirmation tactics. No branch of America’s government has greater legitimacy than the Supreme Court. Allowing Republicans to determine its balance and then have it uphold — thereby legitimizing to most Americans — Trump’s actions should be Democrats’ worst nightmare.
In 2013, Democrats stopped just one step short of fully overturning the filibuster for presidential nominees. Now their biggest priority must be stopping Republicans from taking that last step, which risks not just tipping the Supreme Court in favor of Trump, but the country too. Ironically, Democrats’ cabinet strategy is only slowing cabinet nominees; however, it may be hastening Republicans to take the step Democrats can least afford.
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