Reproductive rights advocates are again facing major fights in 2017, both at the federal and state levels. The most crucial battle will be over whomever Pr*sident Donald Trump nominates to fill vacancies on the U.S. Supreme Court. He has declared that he will appoint “pro-life” justices and assumes this will result in overturning Roe v. Wade, the 44-year-old ruling that made abortion legal nationwide. That would presumably take two appointments since filling Antonin Scalia’s seat would not be enough. And getting a dyed-in-the-wool forced-birther, much less two, onto the court will quite likely collide with the filibuster.
Senate Minority Leader Chuck Schumer told Rachel Maddow Tuesday that Democrats would fight “tooth and nail” against any court nominee outside the “mainstream.” And in an interview with Amanda Terkel Thursday, Schumer hinted that nominees’ stance on abortion might keep them off the court:
“They have to follow the law,” Schumer said in an interview with The Huffington Post on Thursday. “For instance, Roe v. Wade has been the law for a long time. If these people want to just repeal and rip out Roe v. Wade ― you have to look at the whole picture. I’m not going to have a litmus test. But that would be an indication.” [...]
Schumer declined to say Thursday whether he would be willing to keep a Supreme Court vacancy open for four years but added, “If he puts one up out of the mainstream and gets voted down, and he puts another one up, we’ll still oppose that one.”
Repeatedly rejecting nominees would, of course, require that Democrats stick together. It’s not hard to imagine that they might all stand against one or two out-of-the-mainstream nominees, but as time passes, a number of Democratic senators might not be up to maintaining that stance. Then, too, Trump nominees might very well follow the game plan that John Roberts and Samuel Alito followed at their confirmation hearings—conceal their real views, and only later prove they are on most issues every bit the right-wing ideologues their critics had considered them to be.
As Sen. Edward Kennedy wrote in 2006 about the Bush administration’s efforts to keep the questioning of these extremists confined to their personal qualities:
The administration's tactics succeeded in turning the confirmation hearings for Roberts and Alito into a sham. Many Republican senators used their time to praise, rather than probe, the nominees. Coached by the administration, the nominees declined to answer critical questions. When pressed on issues such as civil rights and executive power, Roberts and Alito responded with earnest assurances that they would not bring an ideological agenda to the bench.
After confirmation, we saw an entirely different Roberts and Alito—both partisans ready and willing to tilt the court away from the mainstream.
Avoiding sham hearings for Trump’s court nominees will require confronting the Republican leadership and asking piercing questions, with good follow-ups. So far, Democratic leaders are sounding tough. That’s encouraging to hear. But as every long-activist is all too aware, after awhile resistance fatigue can set in and the temptation to compromise and otherwise cave can grow. That’s a syndrome that doesn’t seem to afflict congressional Republicans. They can obstruct what they want obstructed without bending as time goes on.
Most Democrats abhor such behavior, which in normal times, is abhorrent. But there’s nothing normal about the incoming Trump regime. Democrats need to work hard on developing their stubborn streak and relentlessly hold the line on matters of importance to Americans’ well-being. This is especially so when it comes to appointing new Supreme Court justices, each of whom could still be making terrible decisions decades from now when everybody currently in the Senate is dust.