Trump: If Democrats Filibuster My SCOTUS Pick, I Want Republicans to Go Nuclear

Posted: Jan 27, 2017 1:15 PM

What, if anything, is certain at this stage? From the man himself, we know that the announcement is slated for next Thursday, and that his selection will come from the list he put out publicly during the campaign, even if he isn't quite 100 percent decided. Here's Sean Hannity asking him about the process on Fox News this week -- toggle forward to the five-minute mark:

Based on that first answer, it sounds like Trump has made up his mind but is holding out a possibility that he might make an eleventh-hour switch, based on new information. He declines to answer the "originalist" question, which is a little strange. Maybe he's not entirely sure about the meaning of that term and doesn't want to get pinned down -- but based on what we've read and reported, all three finalists on the short list are judicial conservatives. But are the names that are floating around accurate, and is the final roster still comprised of three people? CBS News reports that Senate Republicans have convinced the White House that William Pryor would face a difficult confirmation because of his outspoken views on abortion precedent, and that a Pryor nomination is now "unlikely:"

Sources tell CBS News Pryor’s nomination is unlikely, after Senate Republicans warned about a repeat of his 2003 appeals court confirmation fight. “I believe that not only is the case unsupported by the text and structure of the Constitution, but it has led to a morally wrong result,” Pryor said then. “It has led to the slaughter of millions of innocent unborn children. That’s my personal belief.” For two years, Democrats blocked Pryor’s confirmation.

Ed Morrissey asks the right questions: First, does this mean that Republicans wouldn't have the 50 votes necessary to confirm Pryor? Or are there not enough Republicans willing to go nuclear when Democrats inevitably mount a filibuster? The former scenario is possible, but I think it's the second question that probably applies here. When Harry Reid eliminated the filibuster for presidential appointments under Barack Obama, he said he was leaving the option intact for Supreme Court nominees. Democrats made clear that they were prepared to further eliminate the filibuster on behalf of a Clinton-picked justice, yet there are a handful of Senate Republicans who have been publicly queasy about doing so now that the shoe is on the other foot. If Orrin Hatch, John McCain and Jeff Flake were to defect from the party in order to preserve Senate tradition, Democrats could block a Trump nominee with 41 votes. On that score, back to the Hannity interview:

Given the GOP's reported warnings to Trump about Pryor's viability, perhaps he's out of the running (despite what Trump adviser Leonard Leo told me on Wednesday), and it's down to two candidates who are seen as more easily confirmable. Scalia clone Neil Gorsuch may have the inside track, but Politico says that Trump's sister, a left-leaning judge, has urged him to nominate her Third Circuit colleague, Thomas Hardiman. Allahpundit frets that Hardiman has a slightly hazier conservative track record than Gorsuch or Pryor, and is the most likely of the three to become an Anthony Kennedy or David Souter: "The big risk for Trump is that because Hardiman isn’t as much of a known ideological quantity as Gorsuch, there’s a chance he’ll be less orthodox on the Court than everyone hopes. If that happens, it’ll be a political fiasco for Trump. The pitch to the GOP’s Trump skeptics last fall was that they had to lay aside their qualms about him and be good soldiers for the sake of preserving a conservative Supreme Court. Trump would fill the Court with Scalias, repaying them for their faith. If Hardiman is more Kennedy than Scalia, Trump will never hear the end of it — especially since he’d be passing over a conservative star like Gorsuch for the vacancy on the advice of his not very conservative sister. "  

That's a fair concern, although SCOTUS Blog's dossier on Hardiman notes that he "has weighed in on a variety of hot-button topics important to Republicans, and his votes in these cases have consistently been conservative."  One potential worry is that he appears to be a blank slate on abortion, a critical issue that will be at the forefront of millions of pro-lifers' minds as they evaluate the pick.  After all, Trump promised Scaliaesque justices, and Scalia was a solid anti-Roe vote.  Parting thought: Let's say Gorsuch or Hardiman gets confirmed without a massive fight.  If there's a second vacancy under Trump, and Democrats mount a filibuster against a Diane Sykes-type nomination because her confirmation could alter the ideological makeup of the Court, would Republicans really shy away from finishing what Harry Reid started?  Is there a single doubt in anyone's mind that Democrats wouldn't play hardball with a key Supreme Court opening at stake?