CNN senior legal analyst Jeffrey Toobin said Tuesday that it would be a "pathetic admission of weakness" if the Democrats were to retake the Senate and confirm a Supreme Court nominee from President Donald Trump.
Discussing Justice Anthony Kennedy on CNN, Toobin said Kennedy’s record is "conservative" even though Trump could appoint a more conservative justice if he decides to retire. After panelist Sabrina Siddiqui said Democrats would be under pressure to block a Trump nominee if they held the Senate, Toobin said Democrats would be weak if they did confirm such a nominee.
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"If the Democrats retake the Senate and they confirm a Donald Trump nominee to its Supreme Court, they ought to just close down the Democratic Party and give up," Toobin said. "It would be the most pathetic admission of weakness in defeat."
Toobin said a Democratic Senate "giving another seat to Donald Trump" would be "inconceivable" in light of how Sen. Majority Leader Mitch McConnell (R., Ky.) "stole" the seat.
"I think it is unlikely they'll retake the senate, but the idea of a Democratic Senate giving another seat to Donald Trump when Mitch McConnell stole one from Barack Obama is simply inconceivable to me," Toobin said.
Obama nominated Judge Merrick Garland in March 2016 election, and McConnell blocked a vote on Garland in order to allow the next president to appoint a Supreme Court justice. That seat was vacant after the unexpected death of Justice Antonin Scalia, a stalwart conservative, and the Senate ended up confirming Trump’s nominee, Neil Gorsuch, last year.
Toobin considered the Court’s ruling on Trump’s travel ban, in which Gorsuch voted with the 5-4 majority, an example of a case decided by Gorsuch’s vote.