The Hidden Stakes of the Midterm Senate Battle

It should be obvious even to the meanest intelligence that the nation will be better off if the Republicans retain their majorities in both houses of Congress after the midterms. But it is particularly crucial that they retain control of the Senate. If the Democrats win control of the upper chamber, their leaders have vowed to block or refuse to hold hearings and votes for President Trump’s nominees to federal courts—including the Supreme Court.

According to an NBC report, Senate Minority Leader Chuck Schumer (D-NY) said, “The bottom line is: One of the reasons we want to do everything we can to take back the Senate is not let Trump put such horrible justices—MAGA justices—on the Supreme Court and the lower courts.” At present, no Supreme Court justice is planning to retire, although Justice Alito told CBS during a recent interview that he did briefly consider it before deciding to stay.

But it’s worth remembering that four of the justices are now in their seventies. Justice Clarence Thomas, the Court’s longest-serving member, is 78. Justice Samuel Alito is 76. Justice Sonia Sotomayor is 72. The youngest of the Court’s septuagenarians is Chief Justice John Roberts, who is 71. This obviously means that one or more of them could well leave involuntarily. Justice Antonin Scalia suddenly passed away when he was only one year older than Thomas.

If, God forbid, something similar happened to any of the justices, a Democrat-controlled Senate would refuse to give anyone President Trump nominates to fill the vacancy so much as a hearing. Nor is it difficult to imagine what pretext they would use to leave the seat vacant. The Democrats haven’t forgotten that former President Obama’s nominee to replace Scalia, Merrick Garland, was never granted a confirmation hearing by then-Majority Leader Mitch McConnell (R-KY).

(Given how Garland’s tenure turned out as Joe Biden’s Attorney General, weaponizing the Department of Justice against Democrats’ political enemies, McConnell’s stubbornness turned out to be a blessing for the country.

Roll Call quotes Phil Brest, president of the left-wing American Constitution Society, as follows: “If there is any potential of trying to shift the court back to one that is more responsive to the present circumstances, that is more true to the Constitution, then of course Democrats are going to use that opportunity to hold a seat open, to follow the McConnell precedent.” What Brest means by “more true to the Constitution” is, of course, more “progressive” rulings.

If Justice Alito retires at the end of the current term, which lasts until the end of June 2027, a Democrat-controlled Senate would certainly leave his seat open until the results of the 2028 elections are known. They would do so if any of the justices leaves the Court for any reason. Indeed, they could leave two or even three vacancies unfilled. Under federal law, only six justices are required to constitute a quorum in order for the Court to conduct business and issue decisions.

If that quorum doesn’t include justices Alito and Thomas, the remaining justices could do a lot of damage. Several important upcoming cases would be decided differently than the Court’s current members would rule. Viramontes v. Cook County, for example, asks whether state and local bans on so-called “assault weapons” violate the Second and Fourteenth Amendments. The three liberal justices need to convince only one “conservative” justice to vote “no,” and goodbye Second Amendment.

Unfortunately, the Supreme Court isn’t the only judicial mischief a Democrat-controlled Senate would get up to. Thomas Jipping, a senior legal fellow in the Edwin Meese III Institute for the Rule of Law at Advancing American Freedom, writes at National Review: “The full Senate has confirmed 76.3 percent of Trump’s judicial nominees, higher at this point than under any president since Bill Clinton.” A Democrat Senate will slam on the brakes.

Despite being in the minority, the Democrats have nonetheless used every procedural trick in the book to slow down the confirmation process. Jipping explains, “Since cloture can no longer be used to defeat a majority-supported nominee, cloture votes since 2013 have had no purpose other than delay and obstruction. And that’s exactly how it’s been used.” The Democrats are forcing these meaningless cloture votes without regard to the damage they do to the judiciary.

At present, there are 28 vacancies in Article III courts, about the month-to-month average. President Trump and the Republican majority have done a good job of filling them, despite Democrat obstructionism. However, if the Democrats take control of the Senate, the unfilled vacancies will accumulate for two years, further slowing down an already sluggish justice system. So much for our Sixth Amendment right to a speedy trial in an unbiased court.

The Democrat plan to block hearings and votes for President Trump’s nominees, combined with its dire implications for the Supreme Court, is not merely a dereliction of duty. It is truly dangerous. So, if you are one of those disgruntled Republican voters thinking about sitting out the midterms, this one issue should be enough to get you off the couch. Sitting on your rump won’t change the price at the pump, but it will damage our justice system and threaten the rule of law.