A major argument for Donald Trump has been that “He’s not a great candidate or a conservative, but we need him to prevent Hillary from picking Supreme Court justices who will gut the Second Amendment.” Given the numerous questionable characters that Trump has chosen to work on his campaign, the idea that he knows how to “hire the best people” is dubious at best. Now, as the “Trump train” goes off the rails three weeks before the election, it is becoming apparent that conservatives need to find an alternative strategy to save the Court and block Hillary. The key to stopping the liberal agenda for the next four years is Congress, specifically the Senate.
Let’s face it. Depending on Trump to appoint strict constructionists to the Supreme Court was always a long shot. The possibility that Trump might appoint good judges outweighs the certainty that Hillary won’t, Trump supporters argue. If one ignores all the other arguments against Trump, it might even be convincing. Yet as Trump goes rogue on the campaign trail, even that slim possibility seems to be vanishing as a Clinton victory grows more and more likely.
The only certain way to stop Hillary’s agenda before it starts is to make sure that the Republican majority in the Senate is preserved. Many Trump supporters will say that the Republicans in Congress didn’t do much to stop Obama for the past six years. They are wrong. The truth is that Republicans in Congress were very successful at stopping Obama’s legislative agenda.
After the Tea Party wave election of 2010, the Democrats did not pass any major legislation for the next six years. Obama’s landmark laws, the stimulus, the Affordable Care Act and the Dodd-Frank financial reform bill, were passed with Democrat majorities in both houses. Not a single Republican voted for Obamacare or the stimulus.
The Republicans in Congress were remarkably successful at stopping President Obama’s legislative agenda. Obama tried to push through gun control in the wake of the Newtown massacre. Republicans stopped him. They actually cut spending in terms of real dollars in consecutive years for the first time since the administration of Dwight Eisenhower. After the death of Antonin Scalia, Republicans in the Senate tabled President Obama’s nomination of Merrick Garland to fill the vacant seat on the Supreme Court. How much credit did Republicans get for these victories? Approximately zero.
Much of the confusion over the Republican Congress “surrendering” to Obama, as many claim, is the difference between stopping Obama and passing legislation to roll back what Obama has already done. Congress is set up so that it is easier to prevent a bill from becoming a law than to enact a new law. This is particularly true in the Senate.
In the Senate, the first hurdle that a bill must pass to become a law is a cloture vote. Cloture is a gentleman’s filibuster. Rather than speaking for hours on end as they did in the old days, today’s Congressmen can block a bill from coming to a vote by rallying 41 opponents to vote against cloture, or ending the filibuster. Therefore, the 46 Democrats in the Senate could effectively block any Republican bill from ever coming to a vote and that is precisely what they did.
The cloture rule is not part of the Constitution. Senators could decide to eliminate it in favor of a straight majority vote. The problem is that there is an even greater hurdle. If a bill passes both houses of Congress, it still faces a presidential veto. To override a veto requires 67 votes in the Senate. Logically, if a bill can’t pass a cloture vote, the veto can’t be overridden.
When the Republicans blocked Obama legislatively, he began issuing expansive Executive Orders and having regulatory agencies issue rulings with the force of law. Because these tactics bypassed Congress, Republicans could not block them. Stopping these abuses would require passing new laws, but the 54 Republicans could not pass new laws without Democratic support. That reality doesn’t change even with a government shutdown. The situation has effectively been a stalemate with neither side willing to compromise on most issues.
Because of the number of Republican Senate seats up for reelection in swing states this year, it was generally assumed that the Republican majority would be smaller for the next Congress. As recently as a few weeks ago, it looked like Republicans would retain control of the Senate, even if they lost some seats. Then came Trump’s implosion.
Not only have the Trump scandals hurt down ballot Republicans, but Trump and his supporters have attacked his fellow GOP candidates. At this point, it seems increasingly likely that the Democrats will win control of the Senate. Even the large Republican majority in the House may be threatened.
While retaining the House would allow Republicans to block legislation such as gun control measures from becoming law, losing the Senate would mean that Democrats could easily appoint extremist liberal judges to the courts with a simple majority vote. There is no filibuster for most judicial appointees thanks to Sen. Harry Reid’s (D-Nev.) use of the “nuclear option” in 2013. With a Democrat Congress and a Democrat president, the filibuster might be eliminated entirely.
On the other hand, retaining control of the Senate would allow Republicans to stop Hillary’s agenda right out of the gate. Appointments to the Supreme Court could theoretically be blocked until after the 2020 elections, if necessary. The Senate has already shown its willingness to stop bad treaties and liberal legislation in its tracks.
There should be no illusions, however, that Republicans can roll back eight years of Obama under Hillary. Even if they retain a majority, they will almost certainly be weaker, at least until the midterm elections. Historically, the opposition party gains seats in the midterms, but even then there is almost no chance of a 67 vote Republican majority.
While it would be preferable to have a Republican president to help pass conservative reforms, Donald Trump is no conservative and has shown little inclination to work with his party. If Trump becomes president and Republicans lose Congress, he could not be trusted to nominate constructionist judges or veto gun control bills. He cannot be trusted to support religious liberty. There is a high probability that he would act with liberal Democrats like Bernie Sanders to scuttle free trade agreements and military alliances.
With Trump falling to the 30 percent range in many polls and trailing in most swing states, there is little chance of a recovery. Republican funds would be better spent on tossup congressional races to preserve the Republican majority than in attempting to shore up a candidate who is biting the hand that feeds him.
If the choice is between an unreliable President Trump and a Republican Senate that has shown its mettle, I’ll throw in my lot with the congressional Republicans.