Republicans are going to confirm President-Elect Donald Trump’s U.S. Supreme Court nominee, whomever it may be, one way or another, Democrats be damned, according to a Politico article posted this morning.
Republicans won’t come out and say it, but there’s an implicit threat in their confidence: If Democrats play things the wrong way, they might find themselves on the wrong end of a legacy-defining change to Senate rules that scraps the chamber’s 60-vote threshold to confirm Supreme Court nominees.
The debate over whether the supermajority requirement for Supreme Court nominations is apparently raging in the Democratic and Republican caucuses. The article states that some Democrats have been quietly chattering about payback over how the GOP treated President Barack Obama’s nominee, Merrick Garland.
It’s been 247 days since Obama nominated Garland to replace the late Justice Antonin Scalia, but the Senate has refused to hold hearings.
No matter whom Trump selects, conflict is brewing. [Senate Majority Leader] McConnell would need at least eight Democrats to clear 60 votes. But even some Democrats representing states that overwhelmingly went for Trump aren’t prepared to say they’ll automatically back his high court nominee.
“I’m going to give them a better break than they gave Merrick Garland,” said Sen. Jon Tester (D-Mont.), who is up for reelection in a conservative state. Asked whether that means he’ll definitely vote for Trump’s nominee to advance over a filibuster, Tester replied: “Hell no. I’m going to make sure the guy or gal is qualified to do the job.”
“It was really pretty horrible what happened to Merrick Garland, so if cooperation means getting a hearing, having a dialogue and getting a vote? I hope so,” said Sen. Heidi Heitkamp (D-N.D.). “You think I’m just going to hand them a vote not knowing who it is?”
Politico reports that Republicans’ preference is to keep the Senate’s rules unchanged but that it will require lots of cooperation from Democrats, “many of whom may believe their imperative is to stymie Trump at every turn. And there will be few fights more consequential than the one over the Supreme Court, which just two weeks ago Democrats thought was tilting their way.”
Monumental Senate clashes over the Supreme Court dates to Robert Bork in 1987, the article states, then Clarence Thomas a few years later, but the latest controversy began during George W. Bush’s presidency, when Democrats began blocking the confirmation of Circuit Court nominees.
That crisis was defused by a bipartisan group of senators, but in 2013 the skirmish boiled over into an all-out war over Cabinet confirmations and judicial nominees. Sen. Harry Reid (D-Nev.), then the majority leader, changed the rules to allow all nominees to be confirmed by a simple — except those to the Supreme Court — via the so-called nuclear option, which means changing the rules by a majority vote. Traditionally, it requires 67 votes to change the Senate rules at the beginning of a Congress, but Reid’s move in 2013 was executed in the middle of a Congress via a simple majority.
Democrats feared then that watering down the supermajority requirement could later ease the confirmation of anti-abortion nominees. Now they are confronting that very prospect: After setting the precedent of changing Senate rules, there’s little reason to think Republicans wouldn’t do the same if their hand is forced.
It’s not clear how Democrats will proceed, but it could be a long battle.