Threat to prevent ANY likely Trump nominee leaves Republicans only the Nuclear Option.
We have covered many times how Democrats laid the foundation for Republicans to use the Nuclear Option for a Trump Supreme Court nominee.
That Nuclear Option would construe Senate Rules to only require 51 votes for cloture, effectively eliminating the filibuster, the 60-vote requirement to close debate.
The foundation was laid in 2013, when Democrats, who then controlled the Senate and presidency, used the Nuclear Option to eliminate the filibuster for almost all Obama nominees. Harry Reid was gloating about going nuclear. Republicans warned that Democrats would regret the day.
The exception Democrats carved out of the Nuclear Option was Supreme Court nominees. That exception was not out of principle, but because there were no vacancies to fill.
In the fall of 2016, however, on the assumption that Hillary would win and Democrats would regain control of the Senate, both Harry Reid and Tim Kaine threatened to use the Nuclear Option to fill the seat left vacant by Antonin Scalia’s death.
So Democrats have no credibility in opposing Republicans using the Nuclear Option to get a Trump nominee into the Scalia seat and to clear Trump cabinet nominees through confirmation. They went Nuclear, and threatened to do it again.
What we now hear from Democratic operatives is that it may have been wrong for Democrats to go Nuclear, but that doesn’t justify Republicans doing it too; two wrongs don’t make a write. That was the theme in a NY Times Op-Ed today, Why Republicans Shouldn’t Weaken the Filibuster:
Democrats used the new precedent [in 2013] repeatedly to confirm nearly 100 judges. The Republicans, after they regained the majority in the 2014 elections, retaliated by essentially shutting down judicial confirmations. When Mr. Trump takes office, about 100 judicial nominations await. By invoking the nuclear option, Republicans can end debate and confirm all of them with a simple majority vote.
But, on Supreme Court nominations, the minority continues to have leverage, and Democrats may try to block Mr. Trump’s nominee with a filibuster. Given how Republicans denied President Obama’s nominee for the Scalia seat, Merrick B. Garland, even a hearing, Democrats may feel justified.
Faced with such a filibuster, Republicans will be sorely tempted to extend the Democrats’ precedent to include Supreme Court nominations. They would be likely to defend the power-grab by pointing to what the opposition did in 2013.
Republicans have bitterly criticized Democrats’ use of the nuclear option. So they should not use it themselves now….
It’s important to keep the filibuster. With it, presidents must try to win the minority’s support for nominees. This has helped to keep nominations in the judicial mainstream.
Schumer was very aware of those warnings back in 2013 and repeatedly lamented after Trump’s victory that Democrats went Nuclear.
But Schumer must be calculating that Republicans don’t have the guts to go Nuclear Option, because last night on the Rachel Maddow Show he threatened to prevent any SCOTUS nominee offered up by Trump. Politico reports:
Chuck Schumer is throwing down the gauntlet on the Supreme Court.
The newly minted Senate minority leader took a hard line on Donald Trump’s yet-to-be-named pick to replace deceased Jusice Antonin Scalia, threatening to leave the empty ninth seat open indefinitely unless Trump nominates someone who could get broad support in the Senate — a scenario Schumer acknowledged is “hard for me to imagine.”
Though Senate Majority Leader Mitch McConnell’s risky gambit to halt the confirmation process for Merrick Garland may have paid off, Schumer warned that Republicans will face payback for their year-long blockade of President Barack Obama’s nominee in due time.
“The consequences are gonna be down the road,” Schumer, a New York Democrat, said during an MSNBC interview Tuesday night. “We are not going to settle on a Supreme Court nominee. If they don’t appoint someone who’s really good, we’re gonna oppose him tooth and nail.”
When asked by host Rachel Maddow whether he would do his best to keep the Scalia vacancy open, Schumer responded without hesitation: “Absolutely.”
Listen carefully to what Schumer said. (full segment here) He said he can’t imagine that Democrats would accept ANY nominee likely to be put up by Trump.
So what choice does that leave Republicans?
Go Nuclear Option.
Schumer is double-daring that he can peel off a few Republicans on the filibuster procedural issue with appeals to the “two wrongs don’t make a right” argument. I’m not so sure Schumer is wrong about that.