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SMITH: Indiana's part in the Supreme Court dance

February 11, 2017

Smith
Indiana proudly proclaims itself the Crossroads of America, a fun appellation that the interstate highway system and history confirm is fitting. But it might be time to change the welcome signs at our borders to proclaim Indiana as the Crossroads of American Politics. It seems all things political now lead to the Hoosier state.

First, Donald Trump won the primary here in May 2016, vanquishing his last credible opponent. We know in retrospect—because of the presidential election exit polling—that win meant Trump was close to securing the presidency of the United States.

Next, Trump selected our governor, Mike Pence, as his running mate in July, just before the GOP convention in Cleveland, thereby locking in their win.

Now comes the first truly titanic fight of the new Trump/Pence administration: Indiana will be at the center of this battle to confirm a new U.S. Supreme Court justice. That’s because Indiana’s U.S. Sen. Joe Donnelly is among the handful of possible “persuadable” Democrats in the upper chamber. Donnelly will be an intense target of President Trump and Vice President Pence as they seek to fill the seat held by the late Justice Antonin Scalia.

The stakes for Donnelly could not be higher. He finds himself in the political crosshair of the first major debate and struggle of the Trump/Pence administration as he prepares his own re-election bid for 2018. So Hoosiers will also have a front-row seat and, potentially again, an outsized role in this political process.

These battles are intense. Both as a U.S. Senate staff member and the leader of a policy advocacy organization, I have played small roles in mobilizing public opinion and educating my fellow citizens on potential nominees over the years. The Robert Bork hearings were the worst (there is a reason “Bork” is now a verb in American politics) and the Clarence Thomas hearings the most unsettling. The David Souter confirmation was the most disappointing.

But this fight over the nomination of federal Appeals Court Judge Neil Gorsuch to the U.S. Supreme Court might be the most intriguing. That is because his confirmation in a closely divided Senate (the partisan split is 52 Republicans and effectively 48 Democrats) might require a change in Senate rules, the so-called nuclear option.

Former Senate Majority Leader Harry Reid, D-Nevada, changed the rules to benefit President Obama for executive branch appointments, except Supreme Court nominees. Now Senate Majority Leader Mitch McConnell, R-Kentucky, faces a tough call on changing Senate rules again to facilitate Gorsuch’s elevation to the Supreme Court.

There will be much talk about the Senate’s role and traditions in American public life, but this will come down to politics. And that’s why it will be so fascinating.

Here’s my prediction, so I can eat political crow later.

Donnelly and a handful of other senators facing tough re-election races in red states carried by Trump and Pence will agree to forgo a filibuster, making many speeches about the need to preserve the Senate’s consensus-making role and its (my view) faded status as the world’s greatest deliberative body. If correct, this means Donnelly will vote for cloture, which requires 60 votes, to shut off a filibuster and allow a confirmation vote.

Then Donnelly will vote against Gorsuch, to try to have it both ways. He can say he did not block the Trump/Pence administration, yet voted against this particular judge. Gorsuch would then win a simple majority vote and begin serving on the high court.

We’ll see if this happens and, if so, whether Hoosiers are fooled. Fascinating times, indeed.•

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Smith is president of the Indiana Family Institute and author of “Deicide: Why Eliminating The Deity is Destroying America.” Send comments to ibjedit@ibj.com.

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