Republicans’ refusal to consider President Obama’s anticipated Supreme Court nominee is setting up the possibility of radical rule changes in 2017 that would change the Senate as it’s known today, by imposing what some are already calling the “thermo-nuclear” option.
Republicans say they want the next president to pick a nominee to replace the late Justice Antonin Scalia, which has drawn howls from Democrats. But the Senate majority is also in play this year, and whichever party controls the Senate in 2017 may act to eliminate the Senate rule that allows the minority party to filibuster Supreme Court nominations.
Longtime observers of high stakes Supreme Court Senate fights say that the two parties are so fiercely divided when it comes to replacing Scalia, that by the time next year rolls around both parties will be under tremendous pressure to push through their party’s favored nominee and block the other party’s pick.
“I do think there is a possibility of a filibuster either by Democrats or Republicans, whoever is in control of the Senate,” said Illya Shapiro, editor-in-chief of the Cato Institute’s Supreme Court Review. “If that were to happen, it’s likely that the filibuster would be eliminated by either side.”
Senate Democrats already eliminated the filibuster option for the minority party for lower-court nominees and executive branch nominations, known as the “nuclear option” when then-Majority Leader Harry Reid, D-Nev., deployed it in 2013. Shapiro says that shows Democrats would likely kill the filibuster for Supreme Court nominees if doing so got them the result they wanted.
“And Republicans would do it because the Democrats have done it already,” Shapiro said. “What’s good for the goose is good for the gander.”
Either way, he said, “I don’t think the filibuster is long for this world in that context.”
Jim Manley, a former senior adviser to Reid and a longtime Democratic operative, said just how far Democrats would go depends on how McConnell handles Obama’s high court nominee this year.
“If McConnell doesn’t even allow the Judiciary Committee to hold a hearing on the nominee, all bets are off on what happens in the future,” he said.
If Democrats win the Senate back, they’d have a two-week window early next year in which they could end the filibuster for Supreme Court nominations, and push through Obama’s preferred nominee before the new president takes over. Manley wouldn’t say if that could happen, but clearly signaled that all options are possible.
One senior GOP Senate aide cautioned that he didn’t think either Obama or Democratic leaders would be that bold under a January last-ditch lame duck scenario.
“I doubt even Obama would be that brazen,” the aide said. “He wants to be seen positively in history and this would sink that.”
But others aren’t so sure given Washington’s sharp partisan divisions, Obama’s willingness to push the envelope with executive actions, and the importance of putting a possible deciding vote on the Supreme Court.
Not even hours after Scalia’s passing, a Democratic elections blogger known as Taniel, who has written for the Daily Kos Elections website, suggested just such a scenario.
“There is a 2-week window in which Obama’s Presidency will coincide with 115th Congress, which may have a Democratic Senate,” he tweeted Saturday night.
Taniel’s idea is not all that far-fetched considering the daunting election map Senate Republicans face this year.
Republicans are defending more than twice as many seats as Democrats. Only two Democratic seats are in competitive states, while more than half a dozen GOP incumbents are trying to hold onto seats in battlegrounds Obama won at least once.
There’s also an open question about whether the politics over the next Supreme Court nominee would remain so fierce next year that Republicans would oppose any nominee a new Democratic president would send up.
“The question is whether Hillary goes for a moderate choice like [D.C. Appeals Court Judge] Sri Srinivasan? Would he be subject to a filibuster? I don’t think so,” Shapiro said. “But if Hillary is the president and has a Democratic Senate there is a great likelihood that she would go for someone more controversial that Republicans would want to filibuster.”
On the other hand, Democrats could theoretically gain enough Senate seats to successfully block a Republican president’s choice to replace Scalia.
“The partisanship is not going anywhere, so I assume Republicans would mount a filibuster [of a Democratic president’s nominee next year], but I’m not sure they would have the votes to be successful,” Manley said.
The fact that both sides are thinking about possible filibusters in 2017 filibuster is evidence of the opportunistic nature of high court politics. Republicans say Obama himself set the tone for the current fight by filibustering Justice Samuel Alito’s nomination in 2006.
The White House said Obama regretted that vote, in which Obama joined 24 other senators in an effort to block Alito, one of former President George W. Bush’s picks to serve on the bench.
The only time the Senate successfully filibustered a high court nominee was in 1968, when Republicans effectively prevented President Lyndon B. Johnson’s elevation of sitting Supreme Court Associate Justice Abe Fortas to chief justice in Johnson’s final months in office, according to the Senate historian’s office.
