Democrats can rail, protest and filibuster. But in reality, they’ll lose

Democrats have packed the federal courts with judges who intend to dismantle core parts of President Trump’s agenda, and Tuesday’s decision to pick Robert S. “Bobby” Jones III as the newest member of the Supreme Court could set the tone of those challenges for years to come.

Jones, a Ga. federal appeals court judge, was announced as a nominee of President Trump Friday. The Senate will need to approve his nomination before he can take his seat. The seat came open because of the retirement of Justice Anthony Kennedy, a conservative who often voted with the court’s liberals on issues like abortion and gun rights.

Jones was one of three federal appeals court judges who had been nominated by Republican presidents, two of whom were given their seats by Republican senators. Most of the people who will be nominated to fill the nine seats that Kennedy had filled in recent years were announced before Trump even took office, and Republicans were quick to point out that there was still an opportunity for Democrats to do their part and approve the others nominated by previous GOP presidents.

Democrats argued that’s not necessarily true, because Trump’s nominees fit a broader pattern: Trump has nominated multiple conservative judges whose records are on the far right of the political spectrum. Republican Senators Bob Corker and Lamar Alexander announced that they would support Jones’ nomination, but only Corker had endorsed any of Trump’s other appeals court picks, while Alexander’s stated support came only for the one currently on the Supreme Court.

After all, when the other two judges have been nominated, Democrats opposed their confirmation, arguing that their rulings from before Trump took office did not live up to what they assumed was his better intentions.

In the case of Moore v. Ala., then-Justice Antonin Scalia wrote a 5-4 opinion that overturned a precedent on the Federal Election Commission to strike down a state’s prohibition on foreign money going to independent political advertisements. In Citizens United v. FEC, then-Justice Kennedy wrote a 5-4 opinion allowing corporations and unions to spend freely on independent political ads without being bound by restrictions on political expenditures imposed by the First Amendment. Both cases were written by Reagan appointees — Scalia for the opinion and Kennedy for the decision.

So, can Trump’s nominees live up to any high hopes or expectations that Democrats may have for them? Probably not, say legal scholars. For a start, it’s not as though Trump’s track record on political appointments has been so horrible that a lot of moderate Democratic senators would actually seek to block Trump’s nominees for reasons relating to policy beliefs.

“Appointing Republican judges is kind of a conservative thing to do,” said Michael McConnell, former law professor at Stanford University, who served in the Office of Legal Counsel during George W. Bush’s presidency.

To McConnell, the fact that Trump has nominated not one but two overtly conservative judges for the courts means that Democrats may have less room to paint them as political hacks. Moreover, Democrats are fully aware that Trump can only afford to lose one vote to get his nominees through, and they have always known that they will have an opportunity to hold up one if they so desire.

That means that “the Democrats have an incentive to offer extreme non-constructive criticism,” said Michael Heyerman, a law professor at the University of Wisconsin at Madison. “They have this incentive to filibuster everything.”

Still, this is only one appointment, and there’s no guarantee that this confirmation will play out this way. Jones has a reputation as a moderate judge, not an extreme one. He was nominated to the Court of Appeals for the 11th Circuit by President George W. Bush, after working in both Republican and Democratic administrations in different capacities, including as assistant attorney general for Civil Rights in President Clinton’s Justice Department.

He has consistently written opinions that are moderate, and that agree with conservatives who believe in the principle of more limited government — more for less. That makes him more palatable than some of Trump’s other potential picks for the Supreme Court.

Before joining the federal court, Jones was a litigation partner at two prominent law firms, Houston-based Andrews Kurth LLP and Deloitte LLP.

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