The decision by Pennsylvania Sen. Arlen Specter to join the Democratic Party means President Barack Obama will likely have a filibuster-proof majority in the Senate to vote on his replacement for retiring Justice David Souter.
But Specter’s departure could also make it harder for a very liberal nominee to be cleared out of the Senate Judiciary Committee — thanks to a filibuster rule that, if invoked by Republicans, would require the vote of at least one GOP member to cut off debate on the panel.
Specter would have likely provided that vote as the committee’s top Republican. But now he’s a Democrat.
“The rule as written would allow this kind of problem [for Democrats],” noted Cornell Law School professor Michael Dorf. “It is a potential glitch.”
A Democratic aide on the Senate Judiciary Committee told The Examiner that the ability of the minority to filibuster is “in our committee rules,” but added that the tactic has not been used in recent memory.
The rule says that if one senator objects to voting on a nominee, an affirmative vote is required of all 10 members of the majority on the committee plus one member of the minority to vote to cut off debate.
Even without Specter on the Republican side of the dais, GOP aides said Democrats might be able to rely on other Republican moderates on the committee, such as Lindsey Graham, of South Carolina, to provide a minority vote.
Whether Republicans attempt to block a committee vote will hinge on how liberal a choice Obama makes. The Democrats control 59 votes, one short of the 60-vote supermajority that would prevent Republicans from blocking a Supreme Court nominee. With
Democrat Al Franken expected to win Minnesota’s Senate race recount, Democrats will very likely have a 60-vote majority by the time the chamber votes on a nominee.
“Obama has talked about some of his judicial heroes and they are the sort of liberal lions like [Supreme Court Chief Justice] Earl Warren and Justice Thurgood Marshall,” said Pepperdine University political science professor Chris Soper.
Obama told reporters Friday he will seek a nominee who has “empathy and identifies with people’s hopes and struggles.”
That statement drew immediate fire from Republican Judiciary Committee members. “The way he is talking, whoever he picks is going to be an activist judge right from the start,” said Sen. Orrin Hatch, R-Utah, on Fox.
Republicans are preparing for the fight by lining up a conservative senator to take the place of Specter as the Judiciary Committee’s ranking member. Sen. Jeff Sessions, R-Ala., appears to be in line for the job, aides said.
