President Donald Trump hasn’t announced a Supreme Court nominee yet, but some Democrats have already decided there’s no point in meeting with her, no matter who it is.
These Senate Democrats say it’s a no-brainer to shun whoever Trump chooses to replace the late Ruth Bader Ginsburg. A meeting would be fruitless not just because Trump is likely to pick a hard-line conservative, but because they’re still furious Majority Leader Mitch McConnell stonewalled Merrick Garland in 2016.
“This is an illegitimate nomination,” said Sen. Jeff Merkley (D-Ore.), who said he had “no intention” of meeting with the nominee. “I personally have no desire to pretend it’s acceptable.”
“No,” said Sen. Bob Casey (D-Pa.). “Why would you meet with somebody if you already know where they’re going to be on every case?”
Or, as Sen. Mazie Hirono (D-Hawaii) put it: “Whatever she has to say to me, she should say it under oath.”
But don’t expect the whole party to snub the high court pick. Sen. Joe Manchin, who has supported two of Trump’s nominees, said he isn’t ready to totally turn his back on the traditional process even though he’s announced his opposition to a pre-election confirmation.
“I’d love to meet with a nominee. I have no problem,” said Manchin (D-W.Va.), who said he had never been more “ashamed and embarrassed” to be a senator than in 2016 when many Republicans refused to meet with Garland, former President Barack Obama’s nominee.
Democrats are unanimous that they won’t support considering a new justice before the election, but many in the caucus are weighing whether it’s appropriate to give Trump’s nominee the same cold shoulder that Garland received from Republicans four years ago. There had also been some discussion about boycotting the confirmation hearing, but Judiciary Committee Democrats have reached a consensus not to do so, according to a source familiar with a Wednesday afternoon committee call.
The bottom line is Democrats are still grappling with how to respond to McConnell’s controversial moves to shift the court to the right using whatever power he has. And even amid talk on the left of expanding the Supreme Court should they take power in November, it’s not clear the party is prepared to respond with explosive counter-measures.
A handful of Republicans did meet with Garland in 2016, but the practice of declining to even meet with a nominee is becoming more commonplace. In 2018, many Democrats refused to meet with nominee Brett Kavanaugh because the White House wouldn’t hand over certain records, though eventually moderates and other Democratic senators did meet with him to ask for documents to his face. Some Democrats said they couldn’t get a meeting with Kavanaugh anyway.
Even in the hyper-polarized Trump era, a private meeting with a Supreme Court nominee can be of some use; it gives moderates a chance to display some bipartisanship and it’s the best opportunity for individual senators to press appointees on their potential views, even if they have no intention of supporting the nominee. Justice Neil Gorsuch told Sen. Richard Blumenthal (D-Conn.) that he viewed Trump’s attacks on the courts as “demoralizing” in 2017, a key moment in the confirmation process. Blumenthal did not support Gorsuch.
Meanwhile, most Republican senators have quickly fallen in line behind an unnamed nominee, vowing to complete the confirmation as soon as possible. Many are simply shrugging off their own words from the past about allowing voters to decide election-year confirmations, eager to shift the court further to the right.
The White House criticized Democrats for not seeking meetings with whoever gets the appointment.
“The president has not even put forward a nominee yet,” said Judd Deere, a White House spokesperson. “This is pure politics from Senate Democrats and shows they do not take their constitutional duty to advise and consent seriously.”
Trump is currently debating whether to choose Circuit Court judges Amy Coney Barrett and Barbara Lagoa or one of several other conservative women. But regardless of who he picks, securing meetings with Democrats is likely to do nothing to prevent her from facing a complete and utter rejection from the 47-member caucus. Even Lagoa, who 27 Democrats supported for her current position, faces no prospect of bipartisan support in such a scenario.
Manchin said he would not vote for any nominee before the election, but cracked the door open for a Trump nominee that waited until after Nov. 3 to receive a floor vote.
“I’m against the process. I want to meet with the people, it might be a person who hopefully would come to their senses and not have the vote until after the election, might be a good qualified candidate I’m inclined to support,” Manchin said.
There’s also some question of whether a nominee will want to meet with Democrats, who are already staking out unified opposition.
“I don’t think my vote’s going to count, so I doubt they’ll even want to,” said Sen. Doug Jones (D-Ala.), the most endangered Senate incumbent. “But we’ll see.”
Sen. Jon Tester (D-Mont.) met with Gorsuch in 2017, but during his re-election campaign he said the White House snubbed his efforts to meet with Kavanaugh. Still, he said he’s “open” to meeting with a nominee this time around.
And other Democrats, particularly those on the Judiciary Committee, suggested that they would keep in line with Senate tradition and still meet with whoever Trump nominates.
“I’ve met with nominees in the past. I intend to do my job,” said Blumenthal, a liberal stalwart. “If the nominee is open to meeting with me, part of my responsibility is to have a conversation with the nominee.”
Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) and Sen. Dick Durbin (D-Ill.) both said they’ve always met with nominees in the past when asked if they'd meet with Trump's nominee this fall.
Senate Minority Leader Chuck Schumer (D-N.Y.) declined to comment, when asked whether he’d meet with the nominee, only saying that Trump has not even announced his choice. Progressive senators like Elizabeth Warren of Massachusetts and Kirsten Gillibrand of New York said it was too early to make a decision.
Democrats have few procedural tools at their disposal to stop the nomination from going through. But that’s not preventing them from using tactics like the so-called “2-hour rule” to cancel committee hearings that last more than two hours in an effort to protest Republican efforts to fill the seat. They're also likely to delay the nomination in committee, using procedural tools to hold over the nomination for a week.
Brian Fallon, who leads the progressive legal group Demand Justice, called on Wednesday for Democrats to boycott the hearing. But there would also be a real downside to doing so: Democrats would lose out on the ability to question the nominee and shape the public’s impression of the fight.
It could be a particularly key moment for Sen. Kamala Harris (D-Calif.), the Democratic vice presidential nominee, whose tough questioning has previously led to viral moments.
“I have every plan to do what I’m expected to do,” said Durbin, when asked whether he’d attend the hearing. “I’m a member of the Senate Judiciary Committee.”