The Behind-the-Scenes Maneuvering to Replace Kennedy

(Bloomberg Opinion) -- Good reporting by Robert Costa suggests how the constitutional procedure of “advise and consent” actually works:

Here's the story: It's extremely likely that President Donald Trump's Supreme Court nominee will get the support of all 50 Senate Republicans (with the 51st, John McCain, back home in Arizona). A lot of Democrats are going to say that it's a sign of how weak potentially dissenting senators are. After all, it's possible that Democrats will unite against the nomination, in which case all it would take is a single Republican vote to defeat him or her.

Well, yes. And sure, if you're running ads against a senator who votes yes, it's of course completely legitimate to blame that senator for whatever decisions the nominee he or she supported might make, just as Republicans may try to use a “no” vote against Democrats.

But most congressional business, including this, doesn't happen in votes on the Senate floor. 

Instead, the way this normally works is precisely what Paul is doing. Senators send messages, directly or through the news media, about what they care about and which potential nominees may be problems. A normal White House listens to those messages and adjusts — or doesn't adjust — accordingly. The baseline here is that every majority-party senator wants this vacancy filled by the current Republican president. That limits their influence to some extent; the White House knows that Susan Collins, for example, doesn't want to risk defeating repeated nominees just in case Democrats win Senate control in November and then emulate Mitch McConnell by blockading the position until after 2020 (it's not clear any of that would happen, but the risk of it is part of the bargaining situation).

On the other hand, Paul or Collins or anyone else might well be willing to risk defeating a nominee, so the White House has to take their concerns seriously. If a senator indicates that they might vote against someone the president wants, is it a bluff? Can it be bought off with some other policy consideration? Or is it something that might really put the nomination in jeopardy, something no normal White House wants?

Note too that in theory, this applies to Democratic senators as well. A normal White House might be eager to get bipartisan support for a Supreme Court nominee, since the president's popularity tends to benefit from policies and actions that highly visible members of both parties like. In the past, this at least sometimes produced more moderate choices from both parties. More recently, however, out-parties increasingly have no interest in a deal that would involve supporting a relatively moderate nominee instead of opposing a more extreme one who is confirmed anyway. And the Trump administration has never seemed very interested in making that kind of deal.

The opposition that matters is often being exerted right now, before the president finalizes the choice. And even if every Republican supports the eventual nominee, it doesn't mean they haven't played hardball over it. 

1. Julia Azari at Mischiefs of Faction on Abolish ICE and the Democratic Party. She and I disagree about this to some extent. The issue here is how and even whether parties resolve policy disputes. For Azari, if I understand her correctly, the lack of formal processes is a form of party weakness. I disagree; while there's no formal mechanism, the party network manages to compete and cooperate over policy, in particular through the nomination process. See, for example, how Democrats wound up on the same page when it came to health care after 2008. And it's no weakness for the parties to be decentralized to some extent, even if that means they can't enforce policy decisions on all elected officials. 

2. Also at Mischiefs: Jared McDonald, Candace Turitto and Sarah Croco report on research about how to push politicians to tell the truth. 

3. Dan Drezner on the administration's inept trade war.

4. Nice catch by Jonathan Chait: Trump remains unwilling or unable to even pretend to be president of the entire nation. 

5. Melissa Quinn at the Washington Examiner has the basics on the Supreme Court contenders.

6. Presidential weakness watch: Jennifer Bendery on who is really picking Supreme Court justices these days. 

7. Greg Sargent on Democratic strategy and Abolish ICE. I think he's largely correct, and (to return to the discussion above) it demonstrates the advantages of flexible, networked parties given the situation of a two-party system in a very large nation. 

8. And Mark Joseph Stern on the conspiracy theories circulating about why Justice Anthony Kennedy retired. Yup. That he's hit a reasonable retirement age and would prefer to be replaced by a Republican president is more than sufficient to explain why he's leaving the bench now. 

To contact the editor responsible for this story: Brooke Sample at bsample1@bloomberg.net

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