U.S. Senator Kelly Ayotte (R-NH) addresses the second session of the Republican National Convention in Tampa, Florida August 28, 2012.
Mike Segar / Reuters

Senators blast Trump’s racism, but hold a High Court seat for him

These two paragraphs, published by WMUR in New Hampshire this morning, help summarize quite a bit of the challenges facing the Republican Party right now.
Sen. Kelly Ayotte said Sunday night that presumptive Republican presidential nominee Donald Trump’s recent comments about a judge of Mexican heritage and Muslim judges are “offensive and wrong, and he should retract them.”
But Ayotte’s overall position on Trump has not changed. She still she plans to support the GOP presidential nominee, but as a candidate for re-election, she is not planning to endorse anyone for president.
Got that? Ayotte, a New Hampshire Republican facing a tough re-election fight, has no qualms about criticizing overt racism from Donald Trump, but she nevertheless plans to support her party’s presidential nominee anyway. (Also note Ayotte’s ongoing efforts to draw an odd distinction between publicly supporting Trump and endorsing him.)
The GOP lawmaker thinks Trump “should retract” his offensive comments, but if he doesn’t, there’s no indication that Ayotte intends to actually do anything other than express disappointment.
But let’s not miss the forest for the trees: Ayotte and other Senate Republicans who are willing to criticize Trump’s ugly and divisive rhetoric are simultaneously holding open a U.S. Supreme Court seat for him to make the appointment.
And it’s not just Ayotte. Sen. Rob Portman (R-Ohio) said Trump’s rhetoric is “wrong,” but he still plans to vote for Trump and he’ll continue to leave a high court vacancy in place for Trump.
Sen. Ben Sasse (R-Neb.) also raised eyebrows today with a tweet that said, “Saying someone can’t do a specific job because of his or her race is the literal definition of ‘racism.’” And while that’s certainly a welcome sentiment, note that Sasse is also part of the same Republican blockade on the Supreme Court that empowers Trump – reliant on “racism” or not – to choose the next justice.
As we discussed a month ago, Senate Republicans can distance themselves from Trump, or they can leave a Supreme Court vacancy open in order to let Trump fill it, but doing both simultaneously is a very tough sell.
The New Republic’s Brian Beutler raised an important point about this the other day.
Supreme Court vacancies are relatively rare. But with the power to nominate Supreme Court justices comes the power to fill all federal judicial vacancies, of which, over the course of a presidency, there are typically hundreds. Trump has already said he will likely cull from a list of exclusively white, overwhelmingly male judges to fill Supreme Court vacancies. But we now also know that he thinks judges of Mexican heritage shouldn’t be appointed to the federal bench at any level, because they will be reflexively biased against a president with restrictive immigration policies, irrespective of the nature of the challenges to his use of power.
The Trump University case has nothing to do with immigration policy, or racial bias. It’s a fraud case. If a Mexican federal judge can’t preside impartially over a race-neutral civil suit against Trump, it follows that a Mexican federal judge can’t fairly adjudicate any claims against him. Because what supposedly animates the bias isn’t any underlying substance, but the controversial nature of Trump himself. As Republicans continue their indiscriminate filibuster of Merrick Garland, and slow-walk other federal judicial nominees, keep in mind what they’re holding out for.
When it comes to GOP lawmakers responding to media questions about Trump, the lines of inquiry tend to follow a predicable pattern: (1) “Do you agree with [Trump’s latest offensive comments]?” followed by (2) “Does this change your willingness to support his presidential candidacy?”
There’s nothing wrong with this pair, but the Supreme Court angle deserves to be part of the same mix. If a Republican senator says he or she is uncomfortable with overt racism from Trump, he or she should also explain why he or she supports leaving a high court vacancy in place for a year as a gift to Trump, allowing him to help set the nation’s legal course for the next generation.