Trump Will Not Decide the Next Supreme Court Justice, Nor Will Clinton

Everyone Forgets About the Filibuster

Trump is not a true conservative. Do I need the argue that? He has constantly flipped on issues with no clear allegiance to the conservatism or the Constitution. But, many are are willing to look past that because, he has agreed to appoint a conservative judge to the Supreme Court. If that is the main or only reason you are voting for Trump, find another.

What seems to be forgotten is that nominees for the Supreme Court can be filibustered. And the chance that Trump will have a supermajority is infinitesimal, Of the 34 senators up for re-election, 24 are republican. The odds are currently about 50% that republicans can keep a majority. The odds that republican keep their current number is only 5%. Forget the chances that there will be 60.

So, even if the Senate is held, the next Supreme Court Justice will need 6 to 10 democrats to agree. If the democrats even allow Trump to appoint a justice, he will not be a Scalia. He will not be on the list Trump holds out as a bribe for conservative votes. The next justice will be a moderate.

The good news for conservatives (or bad news for liberals) is that for Clinton, it will be no difference.

But what if the Senate Majority Leader ends the filibuster, at least for SCOTUS nominees. That is also extremely unlikely. To begin with, it would be foolishness for if a democratic Majority Leader, most likely, Chuck Schumer. In 2018, the democrats are unlikely to hold on to the Senate, for the same reason it's so difficult for republicans this election. Democrats will want the filibuster then.

If Senator McConnell is the Senate Majority leader he could end the filibuster, knowing he is likely to hold the Senate for at least 4 years. But that would be out of character for him. First, Senator McConnell has made every indication that he cherishes the traditions of the Senate, including the filibuster. And besides, his past actions show, he'll want to keep it BECAUSE the President is republican. Senator McConnell has relied on avoiding controversial bills by pointing to the Presidential Veto. He does not have to ask Senators to make those votes because they'll just be vetoed. With a Republican President he'll need the filibuster to keep that same excuse. If you doubt me looked at what happened the only Obama's veto was overridden.

If you are taking a devils bargain for the Supreme Court you want, here is what your real bargain is. You get a president who's proudly lived a life of decadence, shown no allegiance to conservatism, constantly makes proposals that would end the Reagan Revolution, brags about breaking promises, and lacks moral courage.

For all that, at best you get Justice Kennedy.