Four Lessons on Judicial Nominees

(Bloomberg Opinion) -- As Jennifer Bendery reports, one of President Donald Trump’s appeals court nominees went down to defeat on Thursday. All 49 Democrats opposed conservative Ninth Circuit nominee Ryan Bounds, and when South Carolina Republican Tim Scott defected to join them, the votes were no longer there, and Mitch McConnell pulled the nomination. 

The first lesson is that with a de facto 50-to-49 majority, Republicans remain vulnerable to even a single defection. As many have argued, that gives each Republican quite a bit of leverage within the chamber. Whether that is leverage over the president is a bit trickier, however. It’s Republican senators, not Trump, who (almost certainly) care most about putting conservative judges on the federal bench, which reduces their ability to pressure him. I suspect if a handful of Republican senators demanded that Trump release his tax returns or else they wouldn’t support Supreme Court nominee Brett Kavanaugh, Trump would happily tell them to go jump in a lake — and Republican groups would be furious with them. Still, there is quite a bit of leverage there, either within the chamber or with the president.

The second lesson is that floor voting records are always very imperfect measures of what senators are up to. Since the Bounds nomination was pulled, Scott never did get a chance to vote against him. That’s not unusual; what’s far more rare are times when a doomed bill or nomination gets a floor vote. In fact, the only unusual thing in this case was that the Bounds confirmation vote was scheduled before being canceled. Usually, a nomination that doesn’t have the votes is stopped long before it reaches the Senate floor — in normal administrations, and perhaps in this one as well, quite a few people the president wants to nominate are spiked by Senate opposition before they are ever formally selected in the first place. 

The third lesson is yet to come, because Bounds will likely be replaced by a new, equally conservative nominee — one who will wind up in the same place when deciding cases but without the ugly paper trail that sunk Bounds. As Bendery pointed out on Twitter, given the various problems the administration and the Senate have had and the upcoming elections, the Bounds defeat is still a significant setback. Perhaps a replacement can’t be secured in time to be confirmed in the post-election lame-duck session after all, although if Republicans do lose their Senate majority in November, you can be sure McConnell will try to get as many judicial confirmations as possible before the current 115th Senate adjourns for good. 

And that leads to the fourth lesson, which has to do with the Kavanaugh nomination. Conventional wisdom at this point probably underrates the possibility that he could be defeated: If the hearings don’t go very well, it’s quite possible Democrats will be unanimous against him and one Republican could join them. But at the same time, the conventional wisdom probably overrates how important defeating him would be. Should it happen in mid-September, Trump will rapidly send up an equally conservative alternative, and if that one is defeated, there will still probably be time for a third more-or-less interchangeable pick to be confirmed. The only thing that could change that would be if one or more Republicans decide to oppose any young, very conservative Supreme Court nominee and demand a compromise selection — and there’s absolutely no sign of that right now. Assuming that continues, even if one Republican senator turns against Kavanaugh because he said something stupid at some point, or because he has a very partisan background, or because someone doesn’t like his hair color — it just won’t matter very much in the long run. 

And of course there’s at least a 50-50 chance that Republicans will hold on to their slim Senate majority going forward, in which case McConnell won’t even have to rush replacement choices through.

1. Dan Nexon on the timing of the recent intelligence leak to the New York Times. His speculation sounds correct to me. 

2. Nora Fisher Onar at the Monkey Cage on Istanbul and global cities.

3. Josh Putnam on the latest with the Democrats’ rules for the 2020 nomination

4. “Over the course of my career as an undercover officer in the C.I.A., I saw Russian intelligence manipulate many people. I never thought I would see the day when an American president would be one of them”: That’s House Republican Will Hurd of Texas, who faces a very tough re-election campaign, in a New York Times op-ed. 

5. CNN’s Harry Enten and Chris Cillizza have a top-10 list of 2020 Democrats. Not bad, but my guess is Joe Biden, Bernie Sanders and Eric Holder are seriously overrated here. 

6. The Trump administration’s initiative for association health-care plans doesn’t seem to be going well. Politico’s Adam Cancryn reports.

7. And my Bloomberg Opinion colleagues Liam Denning and Elaine He on gas prices and the 2018 elections.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.

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