When Democrats thought they had a lock on the White House and the Senate, retiring Senate minority leader Harry Reid made one thing abundantly clear: If necessary, Democrats would get rid of the Senate’s 60-vote hurdle to confirm a Supreme Court justice—just as they had done for other judicial and executive branch appointments in 2013.
“I really do believe that I have set the Senate so when I leave, we’re going to be able to get judges done with a majority. It takes only a simple majority anymore. And, it’s clear to me that if the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I’ve told ’em how and I’ve done it, not just talking about it. I did it in changing the rules of the Senate. It’ll have to be done again,” Reid told Talking Points Memo in an interview published October 24. (In an August interview with the New York Times, Reid called for getting rid of the 60-vote requirement for all legislation unless Republicans drastically reduced their use of the filibuster.)
“They mess with the Supreme Court, it’ll be changed just like that in my opinion,” Reid said, snapping his fingers, acording to Lauren Fox of Talking Points Memo. Fox reported that the Senate Democrats’ incoming leader Chuck Schumer “declined to comment on the future of rules changes in the Senate.”
But now that Republicans control the White House and Congress, Schumer is arguing it’s important to keep the 60-vote requirement for Supreme Court nominees. “We did not change the rules for [the] Supreme Court because we thought on something as important as this there should be some degree of bipartisan agreement,” Schumer said at a Wednesday press conference, trotting out an argument he never made while Harry Reid was threatening to abolish the filibuster for Supreme Court nominees.
Senator Jeanne Shaheen of New Hampshire is another Democrat who seems to have changed her mind about the filibuster. In 2011, Shaheen co-sponsored a bill that would ultimately allow a simple majority of senators to break any filibuster. On Wednesday, Shaheen told THE WEEKLY STANDARD it’s important for the Senate to keep the 60-vote threshold for Supreme Court nominees. “I do think that keeping the 60-vote threshold on the Supreme Court makes sense to do. I’m not inclined to support changing that,” Shaheen told TWS. Asked how she would decide if a nominee deserves an up-or-down vote, Shaheen replied: “I’m going to evaluate candidates based on their background, experience, their judicial philosophy–a whole range of things.”
Tom Udall of New Mexico, one of the leading foes of the filibuster in the Senate, seemed reluctant to discuss efforts to abolish the filibuster. “I don’t think there’s much interest in changing it right now. That’s about all I have to say on it,” Udall told TWS. Asked if he supported his own proposal to scrap the 60-vote rule, Udall replied: “Well, I do. I just don’t think there’s much interest in it right now.”
Senator Bernie Sanders said he wasn’t ready to discuss filibuster reform. “There’s a lot of discussion on a lot of issues. It would be a little bit premature for me to comment,” he said. “Good–good question though. We’ll discuss it.”
For now, Senate Republicans show little interest in getting rid of the 60-vote requirement for legislation. “I’m one of the biggest advocates for the filibuster,” Utah’s Orrin Hatch told the Huffington Post on Wednesday. “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.”
But when specifically asked by TWS if Republicans should remove 60-vote requirement for Supreme Court nominees if Democrats block a new nominee, Hatch didn’t rule it out. “We’re going to get a new Supreme Court justice,” Hatch replied. “Just count on it.”
“I’d like to see us honor the agreed-upon rules. We’ll see what Democrats choose to do,” said Senator John Cornyn of Texas. “But my firm conviction is that we’re going to see federal judges confirmed under … President Trump, starting with the Supreme Court as soon as that nomination takes place.”
Senator Lindsey Graham of South Carolina expressed opposition to changing the filibuster, but he too didn’t rule it out if a Supreme Court nominee is blocked. “I’d like to keep the Senate the Senate if at all possible,” Graham told TWS.
“The last thing I want to do is behave like Harry Reid when it comes to the Senate. I hope that Senate Democrats will understand that President Trump has the same rights as President Obama,” Graham said. “I voted for both of Obama’s nominees because I thought they were qualified even though I wouldn’t have chosen them. And I quite frankly expect the same constitutional courtesy to this president. You can have a challenging hearing. You can do all the things the nominating process is about. But I hope that our Democratic friends—I’m asking them no more than I’m asking myself.”
Graham was a member of the bipartisan “Gang of 14” in 2005 that agreed to keep the 60-vote requirement for judges and allow votes on some but not all Bush judicial nominees who had been blocked by Democrats. In 2013, a simple majority of Senate Democrats abolished that 60-vote requirement and proceeded to stack the second most important court in the country with Obama appointees.
The fight to confirm a new Republican nominee to the Supreme Court obviously hasn’t even begun yet. But if Democrats block a nominee from filling Antonin Scalia’s seat simply for having a judicial philosophy similar to Scalia’s, Senate Republicans will face a tremendous amount of pressure from their voters to do exactly what Democrats promised they would do if they were in that situation and confirm a Supreme Court justice with a simple majority.
