Feb 21, 2017

Inside Trump's SCOTUS strategy

Carolyn Kaster / AP

The Trump team's strategy to confirm Supreme Court Neil Gorsuch has boiled down to a single psychological advantage: They're betting Democratic Senate leader Chuck Schumer has more powerful incentives than Republicans to avoid the "nuclear option."

Trump's inner circle on the court fight doesn't view the nuclear option as a disappointing fallback. Far from it. They'd see its use now as a major strategic victory.

Why this matters: Democrats are in a tougher spot on the Supreme Court than many realize. The base is braying for total warfare, and Schumer is channeling that pressure. Red state Democrats, however, are concerned about their re-election chances in 2018, and some are telling their more bipartisan Republican colleagues that they're worried about facing primary challenges from the left.

Here's the Trump team thought process, from sources close to the confirmation process:

  1. The Gorsuch nomination is controversial, but nowhere near as controversial as the next time a Supreme Court seat becomes vacant.
  2. A court with Gorsuch would lean rightward 5-4, but it'd hardly be a solid 5-4. Conservatives have little faith in Justice Anthony Kennedy, especially on social conservative priorities.
  3. If the next seat to be vacated belonged to Kennedy or a liberal justice, progressives would be justified in declaring that the fight over this single seat could reverse the left's landmark decisions, such as the right to have an abortion.
  4. If Schumer plays hardball now and denies Gorsuch 60 votes, Mitch McConnell would have a compelling argument to placate Republican Senate "old bulls" like John McCain who are worried the nuclear option would further erode their already-endangered institution.
  5. Using the nuclear option this time would lower the threshold for its use in the next Supreme Court fight, when Republicans will really need it.

Considering how this plays out long-term, it's easy to view the current SCOTUS fight as "win-win" for Republicans.

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