News is breaking that Supreme Court Justice David Souter is retiring. There will be a fight over his replacement, for sure. And Arlen Specter switching may have given Republicans a trump card to block an unacceptable replacement.

Everyone, including me, has been blogging about how Specter defecting to the Democrats puts the Democrats close to a filibuster proof majority in the Senate, potentially allowing Obama to push through his agenda. And this seems true on most subjects.

But ironically, Specter’s defection may give Republicans the ability to filibuster judicial nominees at the Judiciary Committee level, so the nominees never get out of committee.

Huh, you say. Here’s the explanation, from Professor Michael Dorf of Cornell Law School at his excellent blog, Dorf on Law, written two days ago before Souter’s retirement was in play:

Does Arlen Specter’s defection from R to D strengthen the President’s hand in Congress? Perhaps overall but not on judicial appointments because breaking (the equivalent of) a filibuster in the Senate Judiciary Committee requires the consent of at least one member of the minority. Before today, Specter was likely to be that one Republican. Now what?

The link in Dorf’s post is to Congress Matters, which has the Senate Judiciary Committee rule:


The Chairman shall entertain a non-debatable motion to bring a matter before the Committee to a vote. If there is objection to bring the matter to a vote without further debate, a roll call vote of the Committee shall be taken, and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with ten votes in the affirmative, one of which must be cast by the minority.

Now this is interesting. Specter could allow a nominee out of committee if Specter was a member of the Republican minority, but as part of the majority, he’s just another vote. Here are the other Republicans: Orrin Hatch, Chuck Grassley, Jon Kyl, Jeff Sessions, Lindsey Graham, John Cornyn, and Tom Coburn.

The weak link is Lindsey Graham, who was a member of the Gang of 14. If Graham says the course, the Republicans may not be able to stop runaway spending, military retrenchment, and an interrogation witch hunt. But Specter may have handed Republicans a gift.

And how fitting that Joe Biden arranged it all by convincing Specter to switch. Thanks, Joe. I’m sure your boss will appreciate your service as he ponders who he will nominate for the Supreme Court.

UPDATE: How likely is it that the Senate will change the rules of the Judiciary Committee mid-session? Rules are adopted at the start of a Congressional year, although they can be amended:

RULE XXVI [of the Standing Rules of the Senate]
2. Each committee shall adopt rules (not inconsistent with the Rules of the Senate) governing the procedure of such committee. The rules of each committee shall be published in the Congressional Record not later than March 1 of the first year of each Congress, except that if any such committee is established on or after February 1 of a year, the rules of that committee during the year of establishment shall be published in the Congressional Record not later than sixty days after such establishment. Any amendment to the rules of a committee shall not take effect until the amendment is published in the Congressional Record.

I don’t think it is likely that the Rules will be amended for a particular nomination. First, the rule requiring a minority vote only comes into play if Republicans decide to fight a nominee to the bitter end. Assuming Souter is replaced with a roughly equivalent moderate liberal, I don’t see Republicans picking this fight. The existence of the rule itself should have a moderating effect on the choice made.

Second, changing the rules mid-session would itself be the cause of opposition to a candidate, and would taint any nomination before a vote of the full Senate. Remember, as of now the Democrats still do not have a filibuster-proof majority in the entire Senate, and even if Al Franken eventually gets seated, it would take only one of the handful of moderate Democrats to oppose a nominee for the filibuster to succeed. By forcing a nominee through committee by changing the rules, the administration would be increasing the likelihood of a problem.

Third, Harry Reid shot himself in the foot on rule changes by insisting that Roland Burris could not be seated without presenting the necessary Secretary of State certification. Reid’s words about the sanctity of Senate Rules would come back to haunt him if the Senate changed the Judiciary Committee Rules just to force through a nomination.

UPDATE No. 2: See FoxNews story in which I am quoted extensively on this subject.

UPDATE No. 3: One of the commenters points out that the Senate could vote to discharge a nominee from the committee with 60 votes (the same as to defeat a filibuster). While this appears to be true, the committee minority-vote rule is an established committee rule, presumably negotiated prior to the start of this session. Invoking discharge would have the same effect as changing the committee rules in the middle of the session, so I think the same factors come into play. Why pass a committee rule requiring at least one member of the minority vote for the nominee, if you are not going to honor that rule by voting for discharge?

For more on this point of Senatorial deference to procedure, I recommend Lanny Davis’ post earlier this year on the Gang of 14 compromise. The Judiciary Committee rule requiring a minority vote raises the stakes for any attempt to get around it, whether by rule change or discharge. Senators will have to decide whether the particular nominee at issue is “worth” tearing apart the committee rule, which means that nominees who may have been approved in the absence of the rule may not make it out of committee. It would be much easier for Democratic Senators to allow a nomination to die in committee (or more likely, be withdrawn like Harriet Miers) than to change the rules, so to speak, and force the vote to the floor of the Senate.

UPDATE No. 4: Harry Reid went back on his promise that Specter could keep his seniority. Can’t wait to see how Specter reacts to that stab in the back. This should be very, very interesting. I wouldn’t count on 60 just yet.

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