With a slim Republican majority in the Senate and four months before the 2018 midterm elections, President Donald Trump appears to be sprinting toward his second Supreme Court appointment with few obstacles in his way. But some Democrats are arguing for a halt by dragging special counsel Robert Mueller into the fight.
A handful of Democrats has argued that the special counsel's ongoing investigation should preclude Trump from nominating a successor to replace resigning Justice Anthony Kennedy.
While the argument may sound compelling to Democratic partisans, it doesn't have much basis in law or Supreme Court precedent, constitutional scholars tell CNBC.
Mueller's team is looking into potential coordination between the Trump campaign and Russia during the 2016 election, as well as the possibility that Trump obstructed justice. While Trump is under investigation as part of that probe, he has been told he is not a target, The Washington Post reported in April.
Sen. Cory Booker, D-N.J., identified potential conflicts between the nomination process and the ongoing Russia probe in a judiciary committee hearing last week. “I do not believe this committee should or can in good conscience consider a nominee put forward by this president until that investigation is concluded," he said.
Booker also expressed concern that Trump's documented fondness for demanding the loyalty of his appointees could call the impartiality of his Supreme Court picks into question. That in turn, he said, could potentially apply to the special counsel's probe if any legal challenges to Mueller's conclusions make it all the way to the Supreme Court.
“If we’re not going to thoroughly discuss what it means to have a president with this ongoing investigation happening, who is now going to interview Supreme Court justices, and potentially continue with his tradition of doing litmus tests, loyalty tests, for that person, we could be participating in a process that could undermine that criminal investigation,” Booker said.
Sen. Jack Reed, D-R.I., also highlighted the Mueller investigation in his statement on Kennedy's retirement. Arguing that the next justice should be chosen through a thorough and deliberate process, Reed said that if Republicans "try to rush this nominee through they will also be conveniently ignoring the serious investigation into Russia’s pro-Trump campaign interference in our democracy."
Sen. Jeff Merkley, D-Ore., echoed his colleagues, drawing the same line in the sand in a tweet Friday morning.
Experts say there's no law or tradition barring presidents from nominating judges while they're under investigation.
"I don’t know of any legal or historical basis for that," said William Baude, a law professor at the University of Chicago.
Past presidents have set the opposite standard, in fact, Baude pointed out that President Bill Clinton had nominated Judge Stephen Breyer to the Supreme Court months after independent counsel Robert Fiske was appointed to investigate the Whitewater scandal.
"There's certainly no statutory law or constitutional provision saying that a president under investigation can't nominate judges," said Josh Chafetz, a law professor at Cornell University and the author of multiple books about politics and the constitution.
But the rhetoric might touch an alarmist nerve among Democratic voters that could galvanize turnout for the midterm elections in November.
Suggesting that Trump's Supreme Court pick could potentially undermine the Russia probe — as Booker did — may give Democrats another tool in their arsenal to accuse Republicans of appeasing Trump.
"Democrats realize that, most likely, Trump's nominee will get confirmed, and they're looking for an angle to make the case to voters that this is yet another reason that GOP members of Congress should be voted out," Chafetz said.
"Who knows if it will work as campaign rhetoric, but it's not a crazy gambit," he added.
Frank Ravitch, a professor at Michigan State University's law school, said that while the Mueller investigation doesn't legally take away Trump's power to appoint a justice, the Democrats are presenting a reasonable political argument.
Ravitch contrasted their latest moves with Senate Majority Leader Mitch McConnell's year-long blockade against President Barack Obama's nominee, Merrick Garland, which he said "broke with past Senate practice and common sense."
"Certainly, what some Democrats are proposing now has more substance than McConnell’s gambit, given the nature of the investigation," Ravitch added.
Trump said on Thursday that he would announce his nominee at 9 p.m. ET on Monday. A steady trickle of news reports suggest that his list of contenders has been whittled down to three or four candidates.
While Trump's opponents on Capitol Hill have called for a delay until after the midterms, the president appears to have more than enough time to make his appointment. The midterms are four months away on Nov. 6; Trump's last pick, Justice Neil Gorsuch, moved from nomination to appointment in just over three months in 2017.
The stakes could hardly be higher. The Supreme Court provides the final say on how the words of the Constitution — the nation's preeminent set of rules — can be interpreted. The high court's nine justices are appointed for life terms, and they are all but unimpeachable. When the court's new entrants consistently lean toward one ideology, reams of judicial precedent that had been decided by slim, contentious majorities could be reevaluated.
Still, there are other ways Democrats might be able to keep Trump from further reshaping the high court. The razor-thin 50-49 Republican majority in the Senate could give Democrats at least the sliver of a chance to vote down Trump's eventual nominee to replace Kennedy if potential swing GOP votes such as Sen. Susan Collins of Maine. (Sen. John McCain, R-Ariz., is away from Congress receiving treatment for brain cancer.)
Chafetz said that invoking the Mueller probe could be intended to shore up Democratic votes and unmoor Republican approval in a Senate confirmation vote.
"If McCain doesn't vote, and if they can convince one Republican [e.g., Sens. Susan Collins or Lisa Murkowski] to vote no, and if they can keep all the Democrats together — three huge, and unlikely, ifs — then they can defeat a nomination," Chafetz said in an email.
"Arguments like this are aimed at giving Democrats a reason and rationale for sticking together and Republicans a reason and rationale for breaking ranks," he added.