President-elect Trump’s decisive victory sets up a possible nuclear showdown in the Senate next year over his Supreme Court nominee. However, Senate Republicans may not have the firepower among their own members to drop that bomb.
A Washington Examiner survey of Republican senators this week shows that at least three GOP senators do not support the controversial idea of changing Senate rules to kill Democratic filibusters of Trump’s high court nominees, a move known as the “nuclear option.”
With Republicans facing at most a three-vote majority over Democrats, with the Louisiana Senate race in a run-off and two independent senators caucusing with Democrats, just three GOP senators could vote against the idea of blowing up decades of Senate rules that allow the minority party to block Supreme Court judges they deem unworthy of confirmation.
Right now, it takes 60 votes to overcome such a filibuster of a high court nominee, which would be nearly impossible with Republicans holding 52 or 53 Senate seats next year.
Sens. Lindsey Graham, R-S.C., Sen. Bob Corker, R-Tenn., and Jeff Flake, R-Ariz., all said Tuesday that they would not support a change to the Senate rules to require a simple majority vote to end a Democratic filibuster for high court nominees.
“I think the filibuster rule has played an important, while it has been abused … has played an important role in seeking again things that will be durable that don’t just flip around when there’s a change in control and that would not be my first choice,” Corker told reporters Tuesday night.
“I never wanted to go nuclear – I think we could do it without going nuclear,” Flake said in a brief interview about the looming high court fight.
Graham, after a lengthy press conference with reporters, also said he would likely oppose such a drastic move to limit the Senate’s minority power.
Senate Democrats, when they controlled the majority in 2013, already eliminated the filibuster option for the minority party for lower-court appointments and executive-branch nominees. With the GOP holding a majority, albeit slimmer, and a Republican president in the White House, Democrats are bracing for the GOP to exact some payback with the nuclear option to guarantee confirmation for Trump’s high court picks.
Senate Majority Leader Mitch McConnell, R-Ky., also has hinted that he would like to avoid blowing up the Senate’s longstanding tradition of allowing the minority party to try to block a Supreme Court nominee they don’t like.
But McConnell will face intense pressure to go nuclear from Trump’s base of supporters and other Republicans nationwide if Democrats line up to block the new president’s choices for the high court, as expected.
Democrats, in many ways, are spoiling for a fight over Trump’s lifetime appointment to the high court after McConnell and other Republicans prevented President Obama’s choice to fill the late Justice Antonin Scalia’s seat for nearly an entire year.
McConnell last week said he felt vindicated by the decision because it left the selection for the critical appointment to Trump. But Democrats appear willing to do whatever it takes to try to prevent the new president’s choice from winning Senate confirmation.
Sen. Sheldon Whitehouse, D-R.I., said he was already prepared to go to mat to try to prevent Trump from seating one of the 22 judges he released in a list of Supreme Court nominee possibilities during the campaign. Throughout the final months of his campaign, Trump made no bones about saying that he would only appoint pro-life judges, an unprecedented public litmus test that previous presidents have not disclosed before naming their high court choices.
“I think the mood of a lot us is that they’re going to try to plan a person on the court who will deliver a very specific Republican agenda – pro-life, pro-corporate, pro-secret money – a lot of things,” Whitehouse told the Washington Examiner Tuesday night.
“And I think it’s going to be very important that we make as clear as possible to the public that if that person really is not a neutral and disinterested judge, but is somebody who has his marching orders and is going there on a mission, that the public know that,” he said.
Boasting publicly about giving high court nominees a litmus test on any one issue is an unusual practice that Whitehouse predicted would spur Democrats into action to prevent the judge from winning confirmation.
“It appears that they’ve actually opened the kimono and said, ‘Yep, we have a game plan, we have marching orders for the new judge, and we expect the new judge to go there and do what we tell him,” Whitehouse said. “That’s a new era in Supreme Court conduct, and it’s a border we should not step across lightly.”
Whitehouse went on to say that he fully expects Senate Republican to invoke the nuclear option for Supreme Court judges so it will be important to Democrats to find a few Republicans to vote against Trump’s choices.
“I think we have to be prepared to defend at 51 [votes],” he said. “And if they have an outrageous candidate, hope that some of the Republicans would say this is a bridge too far and we can’t go forward with this candidate.”
