Will Republicans press SCOTUS Nuclear Option button?
Democrats may bear the consequences of their 2013 Judicial Nuclear Strike.
The Nuclear Option was used for the first time by Harry Reid in 2013 to allow Obama to stuff the lower federal courts with Obama nominees despite Democrats not having a filibuster proof majority in the Senate at the time. It was a clear possibility at the time that Democrats were about to lose control of the Senate in the 2014 cycle, so the court-stuffing Nuclear Option was a desperate last-minute tactic.
Democrats said that rule change would not apply to the Supreme Court. Holding back on using the Nuclear Option for the Supreme Court was a meaningless gesture at the time, because there were no Supreme Court vacancies.
Once Republicans took control of the Senate in 2014, the Nuclear Option no longer was available to Democrats because they couldn’t even win a simple majority.
Late in this presidential election cycle, Democrat leaders Harry Reid and Tim Kaine both threatened that if Hillary won and Democrats regained control of the Senate — which they expected to happen — Democrats would use the Nuclear Option to get a Democratic nominee to the Supreme Court confirmed.
The election didn’t turn out as Reid and Kaine expected, but those threats may come back to haunt Democrats, when President Trump nominates someone to fill the vacant Scalia seat.
Democrats are apoplectic at the prospect, claiming that Republicans are stealing the seat by not allowing Obama’s nominee Merrick Garland to be confirmed. Expect Democrats to filibuster all but the most milktoastee Trump nominee.
If Trump nominates someone with a similar conservative foundation and judicial outlook as Scalia, Senate Majority Leader Mitch McConnell will have to decide whether to go nuclear.
McConnell warned Democrats in 2013 that they would regret going nuclear:
There have been some prior indications McConnell would not go nuclear, but Politico is reporting it’s still on the table, GOP could nuke filibuster for Supreme Court nominees:
Top Senate Republicans are drawing a hard line on the Supreme Court, guaranteeing that no matter what tactics Democrats deploy, they will be forced to swallow Donald Trump’s imminent nominee to the high court.
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.
“We’re going to confirm the president’s nominee one way or the other. And there’s an easy way and there’s a hard way,” said Senate Majority Whip John Cornyn (R-Texas). “They just need to accept that reality.”
“The Democrats will not succeed in filibustering a Supreme Court nominee,” said Sen. Ted Cruz, Cornyn’s Texas colleague. “We are going to confirm President Trump’s conservative Supreme Court justices.”
Both Senate leaders, Majority Leader Mitch McConnell and incoming Minority Leader Chuck Schumer, have been mum on the topic.
“We’re going to confirm the president’s Supreme Court nominee one way or the other. And there’s an easy way and there’s a hard way."
— Senator John Cornyn (@JohnCornyn) November 18, 2016
I’m not convinced McConnell will pull the trigger. Or that he even can. Not all Republicans are on board yet for a rule change:
On Wednesday, Sen. Orrin Hatch (R-Utah) may have put a dagger in the scheme.
Asked by The Huffington Post about ending the filibuster, he was blunt.
“Are you kidding?” he said with some vehemence. “I’m one of the biggest advocates for the filibuster. It’s the only way to protect the minority, and we’ve been in the minority a lot more than we’ve been in the majority. It’s just a great, great protection for the minority.”
Hatch, the most senior member of the GOP, presides over the Senate every morning as the president pro tempore, making him third in the line of succession to the White House. He’s also chairman of the Senate Finance Committee.
Hatch’s unequivocal support for the filibuster does not guarantee there won’t be changes to it, however.
Asked about reforming the minority party blockade, famous filibusterer Sen. Rand Paul (R-Ky.) responded, “We’ll see.”
There are calls, like this one in National Review, not to do it, Don’t Nuke the Filibuster:
The filibuster has traditionally encouraged consensus in the Senate by stressing bipartisan cooperation. Cooperative norms have broken down in the federal government in recent years, but wiping away the filibuster could worsen partisan polarization. However they come down on the filibuster and the nuclear option (topics about which reasonable people can disagree), Republicans should keep their eyes on bigger visions and policy goals and not succumb to reflexively adversarian partisanship. Harry Reid’s legacy in Senate leadership will likely be one of partisan nihilism — the man who assailed the tradition of consensus and who shruggingly replied, “Romney didn’t win, did he?” to the accusation that he had lied about Mitt Romney’s not paying taxes. The next Congress should do — and our republic certainly deserves — better than that.
At this point, I think McConnell needs to go nuclear. The long term damage to the Senate was caused by Harry Reid. Democrats need to live with the consequences of their actions.
Going nuclear now will not be the cause of Democratic nuclear action in the future. Reid and Kaine already made clear what Democrats would do in the future.
There is no bright and collegial future in the Senate. One of the most disgusting political creatures in the history of the nation, Harry Reid, made sure to that.
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Comments
If the Republicans let the Dems block Trump’s nominee, and they don’t immediately go nuclear, they will lose the next twenty presidential elections in row. The Republicans cannot waste this opportunity.
I want to see them “let” the Democrats block the nomination… long enough to get the 25 democratic senators up for reelection in 2018 on record with that vote. And no longer.
The GOPe is famous for playing Russian roulette with an automatic. Were I in their position, I wouldn’t screw with Trump. They are not particularly popular with the basket of deplorables.
There are two nuclear options: SCOTUS picks and Legislation. If they try to filibuster the SCOTUS pick go nuclear on that. Then ask them if they want to go nuclear on legislation.
The filibuster has traditionally encouraged consensus in the Senate by stressing bipartisan cooperation.
“Consensus” is one of those funny English words … In idiomatic Senate usage, it’s spelt consensus but it’s pronounced surrender.
McConnell would prefer to fold. He always does.
Hatch is perhaps the most duplicitous man in the legislature. What he says and what he does have no relationship to each other whatever.
Cornyn and Cruz are reliable on this.
None of this is surprising. Team Trump knows what the problem is, but they’re not going to tell the press about it. The heat will be on McConnell; they’ll probably ignore Hatch and try to work around him.
As a Utahn, I would like to apologize most profusely for the spineless coward that hails from this conservative state and now resides in DC. I have worked to get him removed, but alas, there are too many who think he is a great senator for this state.
The news reported last night that he is thinking to run again in two years (that would be his EIGHTH term) even though he said he would retire this time.
In the partisan world of politics today, going nuclear would mean no standard within the Senate ever again. In fact, the filibuster rule would probably die a quick death if McConnell opts to go for it. Where do they go from there? Any future election would mean that a 51 vote margin or 50 vote if the WH and the Senate were the same party would mean that the minority, even if only by one vote, would have zero influnce on any important outcome. I do not believe the public would go for that. obama went with that view and we see how his tenure has turned out. reid is an a$$hole of the first water but that doesn’t mean that we have to become like him. There are about ten blue Senators who will come up for re-election in red states that will have to decide what their future is going to be. Ideologe and unemployed or going along with their constitutients wishes back home.
Give the Democrats a chance to be civil. However, If they aren’t civil, then they get whatever is coming to them.
Mitch McConnell had better grow a pair and go nuclear. Use the next few SCOTUS nominations to bash Hairy Reed’s other eye out, metaphorically speaking. Reed is a disgusting prick of epic proportion, and the Dims need to pay a dear price for letting that disgusting motherf**ker run rampant like they did.
If the Dims are concerned about decorum and reaching across the isle and all that pablum, let them reinstate it the next time they have the chance. They screwed us and it’s time to screw them right back.
The progs really need to be taught a lesson… brought to heel so to speak. They raped and pillaged the last eight year. Screw them. Elections have consequences.
You mean like the Republicans had influence on the Obamacare vote?
You assume (realistically, probably correctly) that once the Senate rules change, they change forever. This is false.
The filibuster is not in the Constitution; it was and has always been a simple Senate rule.
Here’s my proposal (which makes perfect sense to me, so naturally will never be considered in the Senate): Nuke the filibuster. Nuke it for SCOTUS nominations if Dems won’t play, then nuke it for legislation if they still won’t play.
Keep it gone until, oh, say, October 2018. Then bring it back — again, by simple majority vote — except require a 2/3 super-majority (67 votes) to override it, and also make any future decision to change the filibuster rule itself subject to filibuster.
None of this is unconstitutional, by the way; Article I, Section 5 just says that each House can make its own Rules for Proceedings.
Here’s the deal: The Dems wrote the book on the nuclear option; now the GOP can hold them up against their own standard. You’ve heard the old saying, “Never wrestle with a pig; you both get dirty and the pig likes it,” yes? Both sides are already dirty — the Dems saw to that. Now that we’re there, it’s high time the GOP took on the role of the pig.
There are two perspectives on this. The strategic and the tactical.
In this post I will deal with the tactical.
In terms of the tactical. I think that may be a good reason to nominate Diane Sykes. After pushing for Hillary it would be hard for the dems to sustain a filibuster against a woman judge.
Trying to get rid of the filibuster now, would be problematic but if they gain in 2018 it would be harder for John “the Hobbit hater ” McCain and Lindsey “the p****y” Graham to oppose it. So put it off for the future.
Finally, if Trump wants he waits for the Senate to go into recess then make a recess appointment of the nominee. I think that would provide pressure for the Senate to confirm or deny his choice.
As I understand it (and I could easily be wrong), the filibuster used to be employed sparingly only for bills or appointments considered extremely important. The cloture rule is now being used for everything, so that nothing that does not have 60 Senators in favor can pass. The GOP count in the Senate may very well increase in 2019, but not, I think, if they fail to do anything in the interim, with a Republican House and White House. C’mom, guys. Enough is enough.
I think that the SCOTUS Nomination filibuster with the legislative filibuster… I think most would be against doing away with the legislative filibuster but would be open to going nuclear on the SCOTUS filibuster…
The filibuster for judicial appointments is dead, dead, dead.
Deader than the useless lump of whatever between Orrin Hatch’s ears.
Harry Reid and the Democrats killed it.
What on God’s green Earth makes fools like Hatch think Democrats will ever allow any of their judicial nominees to be filibustered again? There is NO plausible justification for thinking Reid would not have nuked it for Supreme Court nominees if the Democrats had the opportunity to approve one, or that Democrats would not do so in future. It’s self-destructive idiocy to think that if Republicans allow the filibuster to stand for Supreme Court nominees the Democrats would reciprocate the next time roles are reversed.
Pandora’s Box is opened. Federal courts have been overtly politicized and the Democrats are the ones who opened the box and did it. Obama has already put overtly ideologically Justices on the Court and loaded up the District courts with equally ideologically Progressive activist judges.
It’s a pattern that must be reversed. The Leftist ideologues have no problem whatsoever with reading into federal laws and the Constitution whatever serves their political agendas. The damage Obama’s appointees have done and will do will create huge problems going forward. The Supreme Court can’t hear every appeal and many of their decisions advancing Progressive political agendas will stand.
One other thing that needs doing: Inflating the DC Circuit bench roster and adding a new crew of originalists to counterbalance the crew of activists Obama & the Democrats installed there. The district that has jurisdiction over most of the cases involving federal bureaucracy and regulations can’t be left in the control of Progressive activists.
For too long the GOP went along with unqualified and ideological Obama nominees because they were afraid Reid and the Democrats would nuke the filibuster. Where did that get them? In the end, Reid nuked it anyway and loaded up the federal courts with Obama’s political tools.
Post-turtle McConnell and the rest of the GOPe had better take off their sissypants and get down to knuckles or there will be a purge of fools and tools in 2018.
Given what Obama, Reid, Pelosi, et al, have shoved down America’s throat over the past eight years, plus all the lying and trickery and constant agitation and divisiveness, it’s fine by me if the GOP uses every dirty Dem tactic it takes to reverse the damage, at which point we can talk about restoring decorum, principles, etc. But until we get there, I’d endorse just about any tactic or course of action, not (entirely) as punishment, but as the quickest path to American institutional restoration.
Have Republicans ever filibustered a Supreme Court nomination?
If not, then it’s just there for them to say, “By God, we COULD filibuster this nominee. If we wanted to.”
Pfft. For Republicans, it doesn’t exist anyway.
This rino rat McConnell needs to go – period.
As long as the filibuster exists, there will ALWAYS be just enough turncoat “Republicans” to give the Democrats what they want. They take turns so that no one rides the heat too much. If the filibuster is gone, then it is pure party -v- party and openly voting with the enemy labels those who do so. That is the dynamic behind McConnell’s and Hatch’s defense of the filibuster. It is so that even when the voters win, they lose.
On the strategic aspects.
I remember 2005 the Republicans in the Senate wanted to execute the nucler option because judicial nominees were being stalled heavily by the Dems.
John McCain and Lindsey Graham then created the “Gang of 14” to prevent the nuclear option. Their argument was that the filibuster would protect the GOP if the Dems ever controlled the Senate.
We saw how that worked in 2013.
Keeping the filibuster for Supreme Court nominees only creates another asummetrical political weapon. One that the Dems can use against the GOP but the BOP can’t use against the Dems. Dump it.
That is not to say that they should eliminate the filibuster entirely.
The modern filibustera Senator starts filustering, they vote on cloture, if that fails they table it for another day.
If Senators want to filibuster they should do it the old way, where they have to get up and talk talk talk.
Good grief! Go ahead and take it off the table NOW – right in Harry Reid’s face!
They’d better. No judicial nominees were ever filbustered until Harry Reid blocked Bush’s picks. We threatened to go nuclear then and we backed down. Then as soon as Obama was in office Reid went nuclear himself. So, the gloves are off. This is war. You’d better be prepared to win it.
I would trace the overt politicization of the process of filling judicial appointments to the nomination of Robert Bork to the Supreme Court and the Democrat opposition to him led by that stalwart of morality and righteous indignation, Teddy Kennedy. Democrats ran an execrable smear campaign against Bork, a good man and highly capable originalist jurist. Ultimately Bork was done in by a handful of Republican Senators who voted against him including another exemplar of morality, Bob Packwood, and also turncoats John Chafee, Arlen Specter, Robert Stafford, John Warner and Lowell P. Weicker, Jr.
As a result the seat went to Anthony Kennedy who has proven to be just as capable as any activist Progressive to read into the Constitution whatever serves his personal political agenda. It also emboldened Democrats to continue to politicize the appointment process, a practice they escalated until Harry Reid and majority Democrats decided, ultimately, to nuke the filibuster and stack the lower courts with Obama’s tools.
McConnell needs to go nuclear to prove to the base that the GOP Senate will fight for us. Otherwise, its just business as usual for the Establishment Party (E).
But I predict the GOP will cave. Because it’s not “respectable”…
There is no reason to nuke the judicial fillibuster or even SAY we’re going to nuke it until the judicial pick has been announced and the Dems up for reelection in two years have good and put their foot into it.
Then push the button and watch them scramble.
It could be the nominee even gets the sixty votes, in which case there’s no need. (Not that I expect that to happen, because the Dems are Dems.)
Yes. Don’t tip your hand now. Keep the Dems guessing. You don’t have to go nuclear until you decide to go nuclear. But then, you go nuclear.
Yep. Orrin Hatch is still an idiot, however for saying what he did.
Will Republicans press SCOTUS Nuclear Option button?
What they SHOULD do is slam a closed fist down on the Nuclear Option button repeatedly until it breaks. And when the Deemocrats scream and shout about “fairness” and “minority rights” the Republicans should have an I-Pad or Tablet ready to go with Harry Reid’s pontifications about “protecting minority rights” from 2005 followed immediately by his comments immediately before the Senate changed the rules in 2013 to eliminate the Filibuster for non-SCOTUS judicial nominees.
Then they should say “President Obama famously pontificated ‘Elections have consequences. I won.’ Three years ago when Republicans were battling President Obama over the debt ceiling and a government shutdown President Obama opined ‘You don’t like a particular policy or a particular president? Then argue for your position. Go out there and win an election.’ We took that to heart, listened to the vast geographic majority of the United States public and intend to follow their directives. The coverage of the nation by Republicans sending directives is better than the cellular coverage by Version, and to that public, we say ‘Yes. We can hear you now.'”
Has any United States Senator from the Democrat Party ever indicated that maybe perhaps Dirty Harry was despicable for his telling lies about Romney? Or any of the other nefarious things they did? For example, the Obamacare bill originated in the House, was gutted and repurposed from the Senate, a violation of the Constitution. All spending bills most originate in the House, but this was so different from what it started out as, that it wasn’t. No. All the Democrats have sat quietly while Harry lied for them. Like they are liars themselves. Dirty bastards. No filibuster for people who hate this country.
Drop the bomb, make it happen. The Dems have earned this.
The RINOs are still there and I fear they will try to sabotage things, as is usual for them. McCain, Graham, McConnell and others are part of the “go along to get along” gang. I’m sick of the “reaching across the aisle” crowds caving while the dims stick to their “our way or the highway”. This country is in a terrible mess because of them all.