Some Democratic senators and their allies are starting to make the argument that not only should there be no Supreme Court pick until after the November elections, but that there shouldn’t be one at all while the president remains under criminal investigation.
Special counsel Robert Mueller is investigating President Donald Trump as part of his probe into Russia’s interference in the 2016 election to defeat Hillary Clinton. Trump is not, however, a criminal target of Mueller’s.
During a judiciary committee hearing Thursday, Sen. Cory Booker (D-N.J.) noted that a challenge to the investigation could very well end up before the Supreme Court at some point ― potentially creating a conflict of interest for a president who has asked nonpartisan officials for their loyalty.
“If we’re not going to thoroughly discuss what it means to have a president with this ongoing investigation happening, who is now going to interview Supreme Court justices, and potentially continue with his tradition of doing litmus tests, loyalty tests, for that person, we could be participating in a process that could undermine that criminal investigation,” Booker said. “I do not believe this committee should or can in good conscience consider a nominee put forward by this president until that investigation is concluded.”
Sen. Jack Reed (D-R.I.) also mentioned the Russia investigation Wednesday in his statement on Justice Anthony Kennedy’s upcoming retirement, saying Republicans will be “conveniently ignoring the serious investigation into Russia’s pro-Trump campaign interference in our democracy” if they try to rush a nominee through.
And a group of Iowans ― state lawmakers and progressive groups ― put out a statement Thursday arguing that Sen. Chuck Grassley (R-Iowa), who chairs the judiciary committee, “must not move forward with another theft on behalf of a President who is being investigated by the Justice Department for obstruction of justice and collusion with a foreign government.”
The “no new justices while the president is being investigated” argument hasn’t had a significant amount of pickup from senators yet, although it’s generated buzz among activists and on social media.
But other Democrats argue that denying the president a Supreme Court nominee is a losing strategy. Their key objectives are 1) to keep the Democratic caucus united in voting against a Trump nominee, and 2) to hopefully win over Sens. Susan Collins (R-Maine) and/or Lisa Murkowski (R-Alaska) by convincing them that the nominee is extreme.
The Democratic base might get fired up about the Russia probe argument ― which could be extremely helpful to the party ― but it might not work as well on someone like Sen. Joe Manchin (D-W.Va.), one of the three Democrats who voted for Trump’s last Supreme Court pick, Neil Gorsuch.
Indeed, on Wednesday, Manchin made it clear he thinks Trump has the right to pick a nominee. “Senators have a responsibility to do our jobs as elected officials,” he said, “and this includes our Constitutional obligation to advise and consent on a nominee to fill this Supreme Court vacancy.”
The Russia investigation is likely to come up more if Trump chooses Brett Kavanaugh, a circuit court judge who is on the president’s shortlist of potential nominees. Kavanaugh is one of the most outspoken champions of unitary executive theory ― essentially, unchecked presidential power over the executive branch ― on the bench, and Democrats would no doubt press him about his views on the constitutionality of the special counsel and other matters regarding the probe.
Trump and his GOP allies in the Senate have said they want to have a nominee confirmed by the midterm elections in November. Democrats have argued that they are being hypocrites, as Senate Majority Leader Mitch McConnell (R-Ky.) refused to give a hearing or a vote to Merrick Garland, President Barack Obama’s nominee to replace the late Justice Antonin Scalia, in March 2016. McConnell argued at the time that a Supreme Court confirmation should not happen until after the election.
Trump, of course, won that election, and he nominated Gorsuch for the bench, stealing the seat away from liberals and securing a 5-4 conservative majority.
So far, McConnell has not been swayed by the accusations of hypocrisy, saying he plans to move forward with filling this Supreme Court vacancy because it’s not a presidential election year.