This story is over 5 years old.

The VICE Guide to Right Now

Democrats Say They're Planning to Filibuster Trump's Supreme Court Pick

Unless Trump's pick is named "Merrick Garland," the Democrats aren't having it.
Sen. Jeff Merkley at Rex Tillerson's Senate confirmation hearing. Photo By Bill Clark/CQ Roll Call

On Monday, Senator Jeff Merkley, a Democrat from Oregon, said that no matter who President Trump chooses as a Supreme Court justice, Republicans can expect their rival party to filibuster any attempt to confirm the nominee, Politico reports.

Trump revealed early Monday morning on Twitter that the search for a replacement for the late constitutional originalist Antonin Scalia is over, and the new nominee will be announced "live" at 8 PM on Tuesday night. But Merkley told reporters Monday, "we will use every lever in our power to stop this," because Scalia's vacant seat has been "stolen."


"A very large number of my colleagues will be opposed," he said.

If you'll recall, way back in March, President Obama nominated a moderate named Merrick Garland with a long history of bipartisan support to fill that seat. Still, Senate Majority Leader Mitch McConnell refused to confirm the new justice, claiming that lame duck presidents in their last years in office—despite having the constitutional duty to fill vacant Supreme Court seats—aren't allowed to actually appoint justices, citing an ironclad custom put in place by one speech Joe Biden made in 1992.

Senate Democrats will need 41 votes to mount a successful filibuster. The last time a filibuster even came up during the confirmation process was in 2006, when Democrats—among them Barack Obama—attempted to garner enough support to block George W. Bush's nominee Samuel Alito in 2006. That didn't work.

Since 2015, Republican senators, including Lamar Alexander and Roy Blunt, have been talking seriously about getting rid of the filibuster for Supreme Court confirmations. That move would certainly streamline the process of appointing justices, including liberal ones in administrations to come.

But Senator Orrin Hatch, a Republican from Utah, pushed back on the idea of nuking the filibuster shortly after Trump's win in November. "It's the only way to protect the minority, and we've been in the minority a lot more than we've been in the majority," he told the Huffington Post.