News Sips 2/1: ‘Such a Good Choice, Hogan’s Maryland, Eyes on Kennedy, and Nominee Fights

Here are the four things you need to know before your coffee gets cold, the February 1, 2017 edition:

Such a Good Choice

As we covered in some depth last night, (here:, the President followed through on one of his most critical campaign promises and appointed 10th Circuit Appeals Court Judge Neil Gorsuch to the Supreme Court. Judge Gorsuch has been praised across the legal spectrum as being highly qualified and there may not be another Judge in the nation with better qualifications to sit on the Supreme Court (certainly, there are many impressive judges, but they do not likely surpass the resume of Judge Gorsuch).

Avoiding going back over well-trodden areas, let’s turn, instead, prospectively, to the future facing Judge Gorsuch. He will now need to be confirmed by the Senate. A big winner last night was Mitch McConnell, whose decision not to allow President Obama’s pick even a hearing to fill the Scalia Seat (which fell vacant last February 13) drew fierce criticism from the left. McConnell left it up to the American voter, and voters delivered a Republican President.

Sure, Donald Trump’s Presidency was not expected to be a “right wing” revolution by many conservative thinkers. Rather, his populist positions effectively randomized the right-left dichotomy. However, Mr. Trump had made the promise to appoint a Justice in the mold of Scalia, Republicans had listened, believed him, and voted for him. He delivered.

The Senate under former Majority Leader Harry Reid, removed the filibuster (basically, you need 60 votes to end debate and proceed to a vote on a nominee) for almost all Presidential appointments outside of the Supreme Court. Some Democrats are now thinking to invoke the 60-vote threshold against Judge Gorsuch. There are 52 Republicans. Effectively, they would need 8 Democrat defections.

This peeling away of Democrats in the partisan-charged Senate would seem to be a high bar for even the most talented nominee (though, historically, Senators tended to cross over to support nominees more than they do today—no one invoked the filibuster over either of President Obama’s Supreme Court nominees, for example). However, there are ten Democrats up for re-election in the Senate in 2018 in states that Donald Trump won. Especially if Democrats are seen as the Party of intransigence over the confirmation, it’s possible that these vulnerable Democrats could support moving along the nomination (here’s why: Gorsuch would be replacing Scalia. It’s a 1-for-1 ideological swap. Why burn political capital fighting this nominee when you can pick your battles and look reasonable when you do.).

Regardless of whether the Democrats invoke the filibuster, it’s still likely that Republicans will get Gorsuch confirmed even if it means changing the rules of the Senate to eliminate the filibuster and force and up-or-down vote. Barring some irregularity, expect Judge Gorsuch to be confirmed.


Hogan’s Maryland

Today, Governor Larry Hogan will be delivering his third “State of the State” address. The speech, titled “Real and Lasting Change” will likely focus on the progress Maryland has been making and the path forward towards a stable and financially secure future.

It’s important to note that the State was in fairly dire financial times following the largesse of the previous Administration. Certainly, blaming the other side is a trope in political dialogue. However, given the spending and the lack of effort to curtail a widening fiscal gap between revenue and expenses, there were significant concerns that the previous Administration lacked the financial care due stewards of the State’s coffers.

While not all of Governor Hogan’s legislative initiatives have been met with support by Democrats in Annapolis, he is widely-respected across the State and garners deep bipartisan approval. Of course, though, the Democrats want nothing more than to see that approval rating drop to a point where Governor Hogan is vulnerable when he runs for re-election in 2018.

The most important part of the 2018 race that lurks right below the political surface for Democrats is the understanding that whoever is elected Governor in 2018 will have tremendous power over redistricting in 2020. Maryland has been called out, nationally, for the gerrymandering of several of its Congressional Districts, including the hilariously distorted MD03.

Expect the Governor’s speech to lay out a plan forward that charts a moderate and financially sober course.


Eyes on Kennedy

Given that Judge Gorsuch, as we discussed above, is likely to be confirmed to the Supreme Court (despite any partisan hand-wringing), all eyes on the Right now turn to Justice Anthony Kennedy for indications of his plans. There is absolutely no doubt that Republicans would like to see a second opening for President Trump in the first four years of his term in office. When Judge Gorsuch is confirmed, it will be the first time that a former clerk of a Supreme Court Justice has taken a seat alongside the Justice for whom he had clerked.

Let’s get right to the point: Justice Kennedy is 80. Justice Kennedy was appointed by a Republican. Justice Kennedy is a swing-vote on the court on both economic (where he, typically, sides with “conservative” Justices) and social (where he, typically, sides with “liberal” Justices). By all accounts, Justice Kennedy is a consummate gentleman and may not really like the idea of someone like Donald Trump replacing him on the nation’s highest Court. Pundits across the political spectrum see the appointment of Judge Gorsuch as, potentially, having a calming effect on this fear in order to coax Justice Kennedy into retiring during Mr. Trump’s term (while the Republicans maintain the Senate).

The main concern for someone like Justice Kennedy would be Mr. Trump appointing a hard-conservative to the Court to take his place (let’s be clear: over 40% of the decisions of the Supreme Court are unanimous and, even the 5-4 decisions aren’t always “liberals” versus “conservatives.” However, the point remains that many of the decisions that most impact “average Americans” are those where the Court comes down to purely ideological divides).

There were indications that Justice Kennedy may have been considering retiring, but those were quickly assuaged by the press office of the Supreme Court. The only person who knows is Justice Kennedy. If Justice Kennedy chooses to step down, the announcement could come in June when the Court recesses for the summer. This would be the “traditional” date for notices that a Justice intends to retire.


Nominee Fights

Yesterday there was some movement for President Trump’s cabinet nominees in the Senate. However, Democrats have been dragging their feet and preventing Mr. Trump’s team from taking office. Notably, intransigence from the Left now means that Mr. Trump has had fewer nominees confirmed in January than at least his five immediate predecessors.

The Senate did vote to confirm Elaine Chao as Secretary of Transportation. The vote was 93-6 with Secretary Chao’s husband, Senate Majority Leader Mitch McConnell abstaining. In a purely partisan move, Senate Minority Leader Chuck Schumer took an almost unprecedentedly partisan stab at the Majority Leader by joining the “no’s.” Likewise, Senator Elizabeth Warren and Senator Bernie Sanders decided that it was appropriate to oppose the nomination of a highly-qualified woman of color. I guess it only counts when they’re Democrats?

The Senate Judiciary Committee was bogged down by Democrats making procedural posturing and refusing to let the Committee meet after the Senate was gaveled into session. So, Senator Sessions’ nomination is languishing until, at least, today. It’s likely that this nomination will be approved by the Committee today, but, anything is possible these days.

Democrats refused to show up for work on the Senate Finance Committee to vote on sending the nominations of Tom Price for HHS and Steve Mnuchin for Treasury to the full Senate. In order to have a quorum, there needs to be one Democrat present. All of them decided not to show up in what is, apparently, a level of obstruction that has never happened before. There does not appear to be a procedural remedy if these Senators continue to not show up for the hearings.

Both Rick Perry for Energy and Ryan Zinke for Interior were approved by their respective committees. The Senate is also in the “last 30 hours” following cloture of Rex Tillerson’s nomination for Secretary of State. A vote will likely take place to confirm him in this week.

Of course, there are no clean hands over obstruction in the Senate. However, given the fact that we have now set a historical mark of the minority preventing a President’s cabinet from taking office, and the fact that Senators just aren’t even showing up to work, this is likely a raised bar over the Republican decisions of the past.


Of course, there are more things going on in the world, but these should be enough to get your day started.

Matt McDaniel

Attorney and Political Commentator

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