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Cortez Masto to fight conservative SCOTUS nomination, Kihuen recommends Sandoval

Humberto Sanchez
Humberto Sanchez

Concerned over civil and abortion rights, Sen. Catherine Cortez Masto pledged to fight efforts by President Donald Trump to use the latest vacancy to make the Supreme Court more conservative, while Rep. Ruben Kihuen said Trump should nominate Gov. Brian Sandoval.

“Everything’s at stake,” Cortez Masto said in an interview following the announcement that Justice Anthony Kennedy would step down at the end of July.

Along with civil and abortion rights, an issue that was decided in Roe v. Wade 45 years ago, the Nevada Democrat also cited concerns over existing environmental and union protections that could be overturned under a more conservative Supreme Court.

“This court should not be stacked with conservative judges who are only going to be focused on particular segments of the population and not looking out for particular segments of the population and not looking out for all Americans,” she said.

“I think you want a judge who’s fair and balanced, who respects the law, who knows past precedent and the history, and has respect for that,” Cortez Masto continued. “But you also need to recognize that these judges are looking out for the interest of everyone… I don’t want a judge who's going to roll back Roe v. Wade because they are only looking out for the rights of a minority in this country… And that’s true when it come to discrimination.”

She declined to speculate about who could be nominated, but, despite the differences between her and the president, she did not rule out supporting a nominee. “There are some judges in Nevada that I think are very good and they’re not the same party as I am,” Cortez Masto added.

She said it was hypocritical of Senate Majority Leader Mitch McConnell to announce that he intended to confirm the Trump nominee by the fall despite the fact that there are midterm elections this year. McConnell refused to hold a vote or even a hearing for President Obama’s nominee Merrick Garland in 2016 because there was a presidential election that year.

“Does it make sense to delay it and allow the new Congress that’s coming in to weigh in on a lifetime appointment for a Supreme Court justice that’s going to have an impact on our children in years to come? Absolutely,” Cortez Masto said. “To me, it’s just hypocritical and it’s disappointing what you see coming out of the Republicans, particularly the leadership.”

Asked what tools were available to stop a nomination that Democrats don’t like, Cortez Masto said that Senate Democrats will begin to strategize after the July 4th recess. She added that the process affords ways to make one’s voice heard, including meeting with the nominee.

But McConnell, in April, changed the procedure, for confirming Supreme Court judges, in order to confirm Justice Neil Gorsuch, so they can no longer be filibustered. Now, a majority of those voting advances a nomination. Prior to the change, 60 votes were needed to overcome a filibuster. That means that in order to stop a nomination, Democrats, who control 49 votes in the Senate, would have to win over at least one Republican, an unlikely scenario, with Sen. John McCain, a Republican from Arizona, not expected to vote while he's being treated for cancer. 

Kennedy is known for siding with both the conservative and liberal bloc on the court and has been the deciding vote on several landmark cases, including on gay rights and on the 2000 Bush v. Gore that settled a dispute over the outcome of the presidential election. 

For that reason, Kennedy will be difficult to replace and his replacement, depending on his or her judicial philosophy, will change the makeup of the court. That contrasts with Gorsuch, who replaced Justice Antonin Scalia. Both were conservative.

“If we give them another one like Judge Gorsuch then you’re going to see all the protections that we fought for over the years, a woman’s right to choose and our civil rights... we’re going to be looking at rolling those back,” Cortez Masto said. “That to me is why precedent is key. Precedent is something that should be respected and not qoverturned lightly. But we’ve seen that with these 5-4 decisions.”

Her comment comes after a series of cases, decided on 5-4 rulings, that have highlighted the ascendant conservative bloc of the court with Gorsuch’s arrival. Those include a ruling delivered Wednesday in Janus v. AFSCME that said public sector unions could no longer charge workers who are not union members fees because it compromised their First Amendment rights. The ruling overturned a 40-year old precedent, Abood v. Detroit Board of Education, establishing the right for unions to collect those fees.

Along with Cortez Masto, Sen. Dean Heller will also have a vote over who replaces Kennedy.

Heller’s office did not respond to an inquiry seeking comment. But he did predict Kennedy’s retirement in March and said that it would help him win re-election by exciting the Republican base.

“Kennedy is going to retire around sometime early summer,” Heller said in Las Vegas, according to audio of an event he spoke at that was obtained by Politico. “Which I’m hoping will get our base a little motivated because right now they’re not very motivated. But I think a new Supreme Court justice will get them motivated.”

Heller is running against Rep. Jacky Rosen, a Democrat, whose campaign was quick to argue that Heller, without question, would support the Trump nominee and threaten abortion and other rights.

“Nevadans deserve a senator who will fight to protect their health care and reproductive rights, not be a rubber stamp for his party leaders in Washington,” Rosen said.

Kihuen, a Democrat, suggested that Sandoval, the state’s outgoing governor, would make an excellent nominee.

“My only thoughts are that Sandoval should be the next nominee,” he said. “He’s highly respected by both Republicans and Democrats, he’s reasonable, he’s thoughtful. He was one of the most effective governors in our state’s history and one of the most effective governors in the whole country.”

Asked for comment, Sandoval did not divulge his level of interest in being nominated.

“The notion of being considered for a seat on the highest court in the land is beyond humbling and I am incredibly grateful to have been mentioned,” Sandoval said in a statement emailed from his spokesperson.

Sandoval was under consideration to replace Scalia in 2016, but withdrew his name from consideration. At the time, McConnell had said that the Senate would not consider any nominee from President Barack Obama until after the presidential election. Sandoval may also not be a what Trump is looking for in a Supreme Court justice. He is a moderate who embraced the Affordable Care Act and he’s not on the list of 25 conservative judges from which the president selected Gorsuch.

Rep. Dina Titus, also a Democrat, said the nomination “will have far-reaching impacts on the lives of every person in the United States for years to come.”

“There’s no doubt that Trump’s nomination to replace Justice Kennedy will be someone who will also uphold the Republican radical agenda,” Titus said.


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