If Donald Trump's opponents are going to prevent the president from filling Justice Anthony Kennedy's vacancy on the Supreme Court, they have quite a bit of work to do. The strategy starts with rallying the Senate's 49-member Democratic conference to stand together, and then involves finding a Republican senator or two who may not be entirely comfortable with the consequences of confirming another far-right jurist.
As the fight gets underway, however. it's worth appreciating how difficult that first task is likely to be. Many prominent Senate Dems yesterday insisted that the party must take a stand against the Republican scheme, pointing to the GOP's mistreatment of Merrick Garland two years ago.
But not every Democrat in the chamber agreed.
North Dakota Sen. Heidi Heitkamp, a red-state Democrat who has made working with Trump a cornerstone of her 2018 re-election campaign, distanced herself from some Democrats and suggested the President's nominee should get a vote before the midterm elections."I was taught that two wrongs don't make a right," Heitkamp said, a nod to the fact that Senate Majority Leader Mitch McConnell delayed voting on Merrick Garland, President Barack Obama's 2016 pick for the court, until after the presidential election.Manchin and Heitkamp, along with Democratic Sen. Joe Donnelly of Indiana, were the only Democrats to vote for Trump's first Supreme Court nominee, Neil Gorsuch.
At first blush, this might seem admirable. Heitkamp recognizes that Republicans abused their power in 2016, and ahead of a tough re-election fight in a state Donald Trump won by an overwhelming margin, she's not altogether comfortable participating engaging in similar tactics in 2018.
But it's worth appreciating the consequences of such a high-minded posture. What Heitkamp is describing is a dynamic in which there are competing governing standards in the United States: an easier one for Republicans, and a tougher one for Democrats.
This isn't entirely new. When Republicans are in power, they ignore questions of fiscal propriety and run up enormous budget deficits. When Democrats are in power, they're expected to show restraint and make sure every penny of every priority is fully paid for.
When Republicans are in power, they're comfortable exploiting procedural gimmicks and trying to pass major legislation with 50 votes. When Democrats are in power, they're told to get 60 votes for their proposals.
When Republicans are in power, they have no qualms about being ruthlessly partisan. When Democrats are in power, they're expected to make bipartisanship one of their top political priorities.
And when Republicans are in power, abusing institutional norms and traditions to stack the courts with far-right ideologues is par for the course. When Democrats have a chance to do something about it, some in the party pause, wondering if "two wrongs make a right."
To tolerate GOP tactics is to empower and encourage them, enshrining the two governing standards as permanent fixtures of American politics.