In the last few weeks, we have seen the kind of America that Donald Trump has envisioned. It’s one where children are forcibly separated from their parents, judges and journalists are threatened for doing their jobs, and fundamental rights like due process are attacked.
In his words and actions, Trump has made it plain that he does not treat his oath to uphold the Constitution seriously, particularly the independence of the judiciary. He has ridiculed a federal judge for his Mexican heritage, tried to strong-arm the Ninth Circuit Court, and just weeks ago, criticized a judge’s decision to revoke Paul Manafort’s bail.
Trump treats his nominees as if they are taking a fraternity pledge to Alpha Phi Trump. When then-Judge Neil Gorsuch called Trump’s attacks on judges “disheartening” during his confirmation hearing, the president reportedly griped to aides that he might pull his nomination over fears that he would not be “loyal,” a complaint reminiscent of James Comey’s assertion that Trump sought a pledge of personal loyalty.
This has made it vitally important for members of the Senate to exercise their constitutional duty to be a check on the president. But that is now especially true with the retirement of Justice Anthony Kennedy from the Supreme Court.
Senators must vet any Supreme Court nominee put forth by this president to determine whether he or she, like Trump, does not adhere to our country’s ideals of justice, equality, and the rule of law. This means that we cannot have a rushed nomination process.
And yet, that appears to be precisely what we are getting.
“We will vote to confirm Justice Kennedy’s successor this fall,” Senate Republican Leader Mitch McConnell (R-KY) said on Wednesday.
This statement reveals so much.
How can you make such a statement without knowing who the nominee is?
For McConnell, the nominee’s resume, his or her jurisprudence, appears to be of secondary concern. It is not about a thoughtful and careful deliberation regarding an individual’s record; it is about meeting arbitrary deadlines and timetables.
This is as short-sighted as it is craven. The retirement of Justice Kennedy is a flashing red light with a blaring alarm sound about the potential threat to civil liberties in America. It is critical that all senators, particularly Republican ones who have expressed concern about Trump’s actions in the past, give a sober and honest consideration of the president’s nominee. And if it is merited, they should step up, demand a deliberative process that seeks answers to hard questions, and not agree to vote until you get them
Sen. Bob Corker (R-TN) has spoken out against Trump’s “debasement of our nation,” while Sen. Ben Sasse (R-NE) has warned that Trump “displays essentially no understanding” of the American system of government. But these two Republicans have yet to take any meaningful actions to back up their criticisms with their votes. This Supreme Court debate presents a chance for vindication and defending the Constitution. They hold tremendous power in this process.
Sen. Jeff Flake (R-AZ.) recently took a courageous vote to oppose the confirmation of the president’s nominee to lead the CIA—whose horrific record on illegal torture was beyond the pale—and even once denounced Trump’s “threats against principles, freedoms, and institutions.”
“When the next generation asks us, why didn’t you do something?” Flake asked. “Why didn’t you speak up? What are we going to say?”
With democracy hanging in the balance on this nomination fight, people are going to ask the same questions about Flake. What is he going to say?
Senators like Lisa Murkowski (R-AK) and Susan Collins (R-ME) rightly broke with Trump to protect women’s reproductive freedom and access to birth control. They are now going to be faced with the same critical determinations to make. The fundamental right of a woman to access abortion services is at stake, and the consequences are that we may criminalize women for simply protecting their health and future.
Murkowski and Collins may understand that. But will they act on that principle?
If they don’t, they may not get another chance. Those are the stakes of a Supreme Court nomination fight. If the Senate doesn’t stand up now, the core liberties and freedoms threatened by Trump will be in jeopardy not just for the remainder of his term, but for generations to come.
Faiz Shakir is the national political director at the American Civil Liberties Union and a former senior adviser to Senate Majority Leader Harry Reid.