Republicans should act now to break the filibuster rule in the Senate so only 51 votes would be needed to confirm Supreme Court nominees, a former law clerk of the late Justice Antonin Scalia told members of the New Jersey chapter of The Federalist Society on Wednesday.
Under existing Senate rules, 60 votes are needed in a “cloture” vote to end a filibuster so the full Senate can vote to confirm or deny a nominee. Republicans need eight votes this week from Democrats to break an expected filibuster of Judge Neil Gorsuch’s nomination to the high court. In February, Trump nominated Gorsuch, a federal appellate court judge, to fill the seat previously held by Scalia.
Since only three Democrats have said they will back Gorsuch, Republican leaders appear poised to exercise what’s described as the “nuclear option” this week to change Senate rules so Gorsuch could be confirmed on a largely party-line vote. That would be fine with Ed Whelan, a former law clerk to Scalia who is now president of the Ethics and Public Policy Center, a Washington-based institute devoted to the application of the Judeo-Christian moral tradition to critical issues of public policy.
“I would very much like to see the abolition of the filibuster,” Whelan said during his presentation. “Who knows what might happen in the Senate elections of 2018. This fight is going to be fought sometime, let’s fight it now, let’s win it now, I’m not certain it is going to be won, but I’m hopeful.”
Whelan addressed about 20 members of The Federalist Society who gathered in the Morris Museum in Morristown, N.J., where he told audience members that the Trump administration will have the opportunity to impact and reshape the federal judiciary. But at the same time, the administration must also navigate its way through a number of challenges.
Any single senator can insist on a cloture vote, but it takes 41 to block cloture. The elimination of the filibuster rule will open the door for future picks to the Supreme Court who share Scalia’s judicial philosophy, Whelan suggested.
“I think the bonanza is tremendous,” he said. “Obviously, we are looking at the possibility of up to three vacancies that are plausible over the next four to eight years.”
Whelan also speculated that Associate Justice Anthony Kennedy would step down during Trump’s first term, but probably not this year.
If Merrick Garland, the chief judge for the Washington D.C. Court of Appeals, had been elevated to Scalia’s position, Kennedy’s influence would have been diminished, Whelan observed. Obama had selected Garland to fill Scalia’s seat, but Republican senators successfully delayed a vote on his Garland’s nomination until after the November 2016 elections, opening the way for Gorsuch.
“Justice Kennedy seems, by reliable accounts, eager to step down,” Whelan said. “His eagerness might be dissipated by the fact that he’s rendered more relevant again now that he’ll remain the fifth vote where Garland would have arguably made him irrelevant. But that said, I don’t think he’ll retire this year, but my guess is next year.”
In November 2013, then-Senate Majority Leader Harry Reid, D-Nev., invoked the “nuclear option” to end the filibuster rule for lower federal court nominees so it would be easier for Obama to have them confirmed. When Republicans came back into the majority, they had initially pushed to have the filibuster restored for lower federal court nominees and executive branch nominees, but Whelan successfully opposed this move.
“I’m not questioning the good faith of these people, they are Senate institutionalists who imagine a linkage that historically has never been there between a nominations filibuster and a legislative filibuster,” he said. “They worry that abolishing the nominations filibuster would lead to the demise of the legislative filibuster, but I don’t think that linkage is there.”
There are currently 19 vacancies on federal appeals courts and 96 vacancies on the district courts. There are also additional vacancies looming with judges who have said they would step down soon.
Whelan said the Trump administration must find a way to accommodate the “blue slip” policy that allows senators to effectively exercise a veto over nominees to positions in their states. In “red states” where there are two Republican senators the process will be easier for the Trump team. But in “blue states” with two Democratic senators and “purple states” where there is one Democratic senator the process will be more complicated, Whelan said.
Appearing on Fox News Sunday, Senate Majority Leader Mitch McConnell, R-Ky., said Gorsuch would be confirmed this week, but that it was up to the Democratic minority how this would happen.
“I think it is noteworthy that no Supreme Court justice has ever in the history of our country been stopped by a partisan filibuster—ever,” McConnell said. “Judge Gorsuch deserves to be confirmed. [He is] unanimously well-qualified [as described] by the American Bar Association. My counterpart Senator Schumer once called it the ‘gold standard.’ [His rulings were] in the majority 99 percent of the time, 97 percent of his rulings were unanimous, only reversed one time in a case in which he participated by the Supreme Court. … That’s why he will ultimately be confirmed. Exactly how that happens will be up to our Democratic colleagues.”
Assuming Gorsuch is confirmed, he would restore the balance that existed prior to Scalia’s death last year, Whelan told members of The Federalist Society. The real critical battles that will alter the balance on the court are yet to come, he said.
Kevin Mooney (@KevinMooneyDC) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is an investigative reporter in Washington, D.C. who writes for several national publications.
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