As soon as Supreme Court Justice Anthony Kennedy announced his retirement on Wednesday, discussion pivoted to who President Trump will choose to replace him. Immediately, many remembered the events leading up to Justice Neil Gorsuch's appointment, and questioned whether or not Democrats can stop Trump's next Supreme Court nominee.
"Senator McConnell set the new standard by giving the American people their say in the upcoming election before Court vacancies are filled," said Sen. Dick Durbin in a statement shared to Twitter. "With so much at stake for the people of our country, the U.S. Senate must be consistent and consider the President's nominee once the new Congress is seated in January."
The last time there was a vacancy on the Supreme Court was under the Obama administration. But because it was during an election year, congressional Republicans by and large refused to confirm Obama's nominee, arguing that the American people deserved to decide on a replacement vis-a-vis the upcoming presidential election. In that way, Republicans argued, voters would engage in a referendum of sorts about whether they wanted to see a more conservative or liberal justice fill the vacancy. (Presidents tend to appoint judges who are aligned with themselves, politically.)
It was a hotly contested strategy, though ultimately the Republicans won. They refused to confirm a replacement until after Trump was elected and therefore able to appoint the conservative Gorsuch.
Whether or not Democrats would be able to pull of a similar move is unlikely, and that's because of simple numbers. They are the minority in both chambers.
In the Senate, Republican sneed only a majority vote to confirm a Supreme Court justice. Currently, they have that, 51-49. As Richard Hasen writes for Slate, the only way to change that would be to persuade some Republicans not to vote in favor of a nominee. In other words, it's not really on Democrats insofar as its on the American public. As Hasen explains, that may mean massive public protests "like we saw with the initial Trump travel ban to try to convince senators like Susan Collins of Maine or Lisa Murkowski of Alaska to vote no."
It's not a sure fire way to prevent a Trump nominee, but it is possible.
For Democrats, one thing a Supreme Court vacancy definitely results in is a blinding political spotlight. Just as a massive debate around political civility is ensuing, congressional Democrats will find themselves choosing between upholding norms and engaging in political protest by way of rejecting a justice nominee.
They will have to decide whether or not too much is at stake for them to let the political machine operate business as usual by choosing to vote in favor of confirming a justice who is the ideologically opposite of them. The other option, of course, would be to vote in favor of Trump's nominee, ostensibly because the apparatus of democracy is bigger than political party. Many voters have already expressed favor for the former — they prefer a tit-for-tat.
"I don’t think the Democrats should allow meetings to occur with Trump’s nominee to fill this vacancy by Justice Kennedy,” MSNBC's Chris Matthews said after Kennedy's announcement. "I think they have to fight eye for an eye for what happened in '16 when the Republicans, led by Mitch McConnell, refused to even consider or even meet with Merrick Garland."
As of now, it's too early to tell how establishment Democrats are going to respond to whomever Trump chooses to nominate, whenever he chooses to nominate him or her. It's undoubtedly going to remain a contentious discussion in the coming months, however. As always, it's a wait and see.