Whom Do Conservatives Want Trump to Pick for the Supreme Court?

Conservatives are divided on who they want to be the replacement for Anthony Kennedy on the Supreme Court. The Hill asked a number of prominent conservatives who their first choice was. This is who they preferred (and why):

• Hugh Hewitt: Raymond Kethledge (Gorsuch 2.0)
• Matt Schlapp: Brett Kavanaugh (voted against Obamacare's contraception mandate)
• Mark Levin: Mike Lee (solid constitutionalist)
• Laura Ingraham: Brett Kavanaugh (12 years of stellar opinions)
• Ben Shapiro: Amy Coney Barrett (a solid originalist)
• Jim DeMint: Mike Lee (a proven record of standing up for principle)
• Adam Brandon: Mike Lee (no specific reason)
• Erick Erickson: Mike Lee (a perfect pick)

So we have 4 votes for Mike Lee, two for Brett Kavanaugh, and one each for Raymond Kethledge and Amy Coney Barrett. When Donald Trump makes his announcement this evening at 9 p.m. EDT, most of them will be unhappy, but it is doubtful they will show it. Most likely all of them will pretend whomever he picks was their first choice, even when it was not. (V)

McConnell Wants Kethledge

Senate Majority Leader Mitch McConnell also has a first choice and it's Raymond Kethledge. Unlike all the pundits listed above, who want a justice who fits their ideology best, McConnell is focused on a more practical matter: Getting the nominee confirmed by the Senate. McConnell has a bare 51 to 49 margin and if the ailing Sen. John McCain (R-AZ) is unable to make the trip from Arizona to D.C. and doesn't resign before the vote, McConnell is effectively working with a 50-49 Senate. That means if the Democrats stick together, he can't afford to lose even a single member of his caucus. McConnell believes that Kethledge would be easier to confirm than the others.

McConnell is afraid that if Trump nominates a fire-breathing conservative who has a long track record of opposing all abortions under all circumstances, he will lose the votes of Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK). In particular, Amy Coney Barrett probably wouldn't be able to get their votes. On the other hand, if Trump nominates a wishy-washy candidate who is nominally pro-life but conservatives aren't really sure about, he could lose the votes of some of the hard-right Senate conservatives, although he might pick up a few Democratic votes. It's a tightrope act, and McConnell thinks Kethledge would be acceptable to all members of his caucus and maybe even some Democrats.

No matter whom Trump picks, some of the red state Democrats are going to be in a real bind, especially Claire McCaskill (MO), Joe Donnelly (IN), Heidi Heitkamp (ND), Joe Manchin (IN) and maybe even Bill Nelson (FL). If they oppose the nominee, Republicans will make their vote a major campaign issue. If they support the nominee, that could antagonize Democrats and dry up funding and the supply of volunteers. It is a lose-lose proposition for them, which is precisely why McConnell wants to hold the vote before the election. However, fear aside, one has to wonder how many votes a "no" on the nominee will cost them, even if it is a major campaign issue. In other words, how many Republicans are poised to vote for a Democrat but would drop that support if the Democrat opposed Trump's pick? It wouldn't be surprising if some of them commission polls to find out precisely that. (V)

The Long Shot Plan for Derailing Trump's SCOTUS Nominee

Many Americans think, apparently, that there are 19 justices on the Supreme Court. Many of these same folks would like to see the Democrats "stop" Donald Trump from picking a new SCOTUS justice. Those of us who paid attention in civics class know that the blue team's hands are tied, and that the GOP is in a position to steamroll them. Nonetheless, the Democrats have to put up the best fight they can, at least for the sake of appearances, and then hope for the best.

Assuming that Donald Trump's nominee does not turn out to have serious skeletons in the closet, then any hope the Democrats have requires three things: (1) That they keep the red-state Democrats who are up for reelection from breaking ranks, (2) That they get at least one Republican to defect, and (3) That John McCain stays home in Arizona and doesn't resign. Any one of these three things is plausible, but for all three to happen will require an awful lot of good fortune (or a really bad nominee).

That said, the Democrats (and their supporting PACs) are pulling out all the stops. Activist groups like Indivisible, MoveOn, and the Progressive Change Campaign Committee are planning protests at the offices of wavering Democrats and of Republicans who might flip. They are also trying to organize a massive call-in and write-in campaign targeting those senators. And several groups, led by Demand Justice (the left-wing equivalent of the Judicial Crisis Network) are going to spend millions of dollars on commercials in those senators' home states.

At the moment, this certainly appears to be an example of tilting at windmills. But it's also the same playbook that the blue team ran when trying to save Obamacare, and it (barely) worked then. So, anything's possible, particularly if Trump's pick turns out to have any significant liabilities. (Z)

The Longer Shot Plan for Derailing Trump's SCOTUS Nominee

The legislative tools the Democrats have for stopping Donald Trump's SCOTUS nominee (see above) are pretty meager, and are not likely to work. But what about judicial tools? If the blue team could find some basis to sue, they might be able to drag the process out a bit, which could be good PR for them, and could also spare the red-state Democrats from casting a troublesome vote. If they get really lucky, they might be able to postpone the whole process until 2021. But first there would need to be a plausible basis for filing suit.

Ken Levy, who holds the Holt B. Harrison Professor of Law chair at Louisiana State University, thinks he's got one. The key to his argument:

As every lawyer knows, not all "laws" are statutes. Many laws come in different forms: court decisions, agency rules, general principles, customary practices, and sometimes even widely accepted opinions by legal experts. Like these non-statutory propositions, parliamentary rules announced by Senate majority leaders constitute laws as well. As a result, they are binding on future legislators unless and until they are explicitly overturned.

Consequently, Levy concludes that the "McConnell Rule"—that SCOTUS nominees cannot be considered until after the next election—is now the law of the land. And if the man whose name is on the rule does not respect it this time around, then the Democrats should sue.

Levy explores the various counter-arguments that the GOP might make to this and refutes them. And his arguments certainly seem sound. It's highly unlikely that the Democrats are ready to play this sort of dirty pool, for fear of looking, well, undemocratic. Beyond their partisan goals, however, gumming up the works like this could serve to highlight the fact that the Founding Parents left some pretty gaping holes when it comes to SCOTUS, and it's time for both parties to join together in closing those holes. (Z)

White House Pushed Pruitt Out

According to a report in Bloomberg News, former EPA Administrator Scott Pruitt didn't resign due to the nearly two dozen scandals he was involved in, nor due to the numerous federal investigations of his actions as EPA administrator. He resigned because the White House called him and clearly told him in no uncertain terms to resign. If he hadn't resigned, he would have been fired. He was simply generating too much negative publicity, and while Donald Trump doesn't care about public officials flying first class or ordering $43,000 sound booths, he does care about bad PR because he knows that hurts ratings. So for that reason alone, Pruitt had to go. (V)

Trump Administration Opposes Breastfeeding

You might think that breastfeeding is not an issue on which the Trump administration would have a position. And, if so, you would be wrong. Although Team Trump basically hates the United Nations, and thinks that the body is ineffectual, they were very unhappy with a non-binding resolution containing international standards designed to protect the rights of breastfeeding mothers. So, led by U.N. Ambassador Nikki Haley, the U.S. tried very hard to kill the resolution, threatening to cut aid and/or military support to any country that dared to introduce the measure in the General Assembly. At least a dozen smaller countries were cowed before the resolution was finally introduced by...wait for it...the Russians. Thereafter it passed, with even the U.S. joining in on the "yea" votes, so as to avoid being the only "nay."

Why would the Trump administration care so much about something that otherwise had universal support? The answer is: They were doing the bidding of corporations that produce artificial formula. Who knew that lobby even existed? But apparently it not only exists (as a $70 billion/year industry), it also has power rivaling the NRA's. Unfortunately for the Trump administration, this story is a bad look for them on many fronts. It makes them look anti-woman, for example, and also reiterates that the Trump foreign policy essentially boils down to bullying (much like the Trump approach to business). Perhaps worst of all, however, is that a supposedly swamp-draining administration is clearly willing to put the interests of Big Formula over the health and well-being of infants. The most recent major study of the matter concluded that universal breastfeeding (which would, of course, reduce that $70 billion/year to $0 billion/year) would prevent 800,000 child deaths a year across the globe and produce $300 billion in savings from: (1) reduced health care costs, and (2) improved economic outcomes for those reared on breast milk.

The remarkable thing here—beyond the sheer venality that seems to be on display—is that if Team Trump had just let this go, it would surely have disappeared into the ether. When was the last time that the federal government looked to U.N. resolutions when setting domestic policy? However, the administration decided to go to war instead—to the shock of the rest of the U.N.—and now they've handed the Democrats (not to mention anti-Trump foreign leaders) even more ammunition to work with. (Z)

McSally Moves to the Right on Immigration

Arizona Senate hopeful Rep. Martha McSally (R-AZ) has never been a strong opponent of immigration—until now. As late as May she was a sponsor of a bill that would have given dreamers a path to citiznship. Then she removed her name as a sponsor. She also started attacking "sanctuary cities." Stuck in the middle of a bitter three-way primary with two extreme-right candidates, Kelli Ward and Joe Arpaio, who are strongly anti-immigrant, she has changed her tune and moved sharply to the right on immigration, presumably because she fears the Arizona Republican primary electorate has no stomach for a moderate on this hot-button issue.

The danger for her is that she convinces people that she hates all immigrants and wins the primary, which is Aug. 28. Then she suddenly has to pivot on a dime and disown everything she said in the primary to win the general election against moderate Democrat Kyrsten Sinema, with very little time in which to do it. Her problem is that Arizona has a large number of immigrants who are American citizens, many of whom have family members and friends who are also citizens, and her new message is anathema to them. Aboout 30% of the population of Arizona is Latino and it skews young as well. Mesa Mayor John Giles said: "I think she needs to be careful not to go too far." As a consequence, she is taking a big gamble by moving sharply to the right on immigration for the primary with the potential danger of being stuck with an unpopular position in the general election. (V)

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---The Votemaster and Zenger