Mitch McConnell basically rules out nuking the filibuster for Supreme Court nominees — or does he?
posted at 6:41 pm on January 27, 2017 by Allahpundit
Uhhhh, four days ago he promised on camera that Trump’s Supreme Court nominee will be confirmed, hint hint. Last night Trump told Hannity that he wants McConnell to blow up the filibuster if Democrats move to block his nominee. All systems are go for full nuclear release.
But wait. The attack is … canceled?
“Senate rules are a matter for the Senate and a lot of other people have opinions,” McConnell said [alluding to Trump].
“We’ve already adopted the rules for this Congress at the beginning of the year. Basically we didn’t adopt any because in the Senate rules are permanent, unlike the House which every two year adopts a new set of rules. We don’t.”
McConnell has argued throughout his Senate career that the chamber’s rules can only be modified with a two-thirds vote, a striking contrast from his predecessor, former Senate Majority Leader Harry Reid (D-Nev.), who triggered the nuclear-option in 2013 to shield executive branch and most judicial nominees from filibusters.
“It takes 67 votes to change the rules in the Senate. We saw one rather conspicuous exception to that a few years ago but no we don’t have any current plans on the rules,” he said.
Reid eliminated the filibuster for presidential nominees and lower-court judges by insisting that the rule could be changed by a simple majority vote of the Senate. If McConnell’s sticking to the belief that it’ll take two-thirds, not a majority, to eliminate the filibuster for SCOTUS nominees, Trump is hosed. There are only 52 Republicans in the chamber; I doubt they’d get a single Democratic vote against the filibuster, with not even Joe Manchin willing to go quite that far to betray his party. It seems that if the GOP’s going to get a nominee through, they’ll need to do it the old-fashioned way with 60 votes for cloture, which means at least eight Democrats joining them. And the Democratic base is in no mood for its leaders to play nice with Trump. What now? And why would McConnell suddenly toss the nuclear option aside?
One possibility: He knows he doesn’t have the votes to make it happen. If just three Republicans decide that they won’t go along in eliminating the filibuster, McConnell wouldn’t be able to change the rule even if he followed Reid’s “simple majority” precedent. Maybe a few GOP Senate holdouts have told him and Trump that they refuse to do any nuking — although in that case, you’d expect Trump to be attacking them publicly. Another possibility: McConnell has reason to think he won’t need to eliminate the filibuster. The most likely SCOTUS candidate to be filibustered by Democrats is William Pryor, but Pryor has slipped down and maybe off the shortlist entirely over the past two weeks. Senate Republicans seem to think he’s no longer a contender. Trump himself noted in an interview this afternoon that one criterion he’s using in making his pick is “who’s going to get approved” — which is not the sort of thing you’d expect him to be worried about if nuking the filibuster is on the table. Maybe McConnell’s nudged him to favor a judge who’s likely to get 60 votes even if it’s not a sure thing. That would explain his recent preference for Tom Hardiman and Neil Gorsuch, both of whom would probably be more acceptable to Democrats than Pryor would be.
Third possibility: McConnell, a master of Senate procedure, has figured out a way around the filibuster that wouldn’t require eliminating it. Conservatives on Twitter are pointing to this recent piece at the Heritage Foundation arguing that the “two-speech rule” would allow the GOP to proceed to a floor vote on the nominee. In simple terms, current Senate rules say that senators are entitled to no more than two speeches on a given legislative day; the speeches can last however long they like and a “legislative day” can last indefinitely (in theory). In essence, if the GOP can’t find 60 votes to defeat a filibuster, Democratic holdouts would be invited to speak for however long they’re able to try to prevent the confirmation vote, provided that each Democrat would be entitled to speak no more than twice. They can hold out for as long as they’re able to stand and blather, but eventually they’ll run out of gas. The “two-speech rule” strategy would essentially force the entire Dem caucus into “Mr. Smith”-style talking filibusters which could go on, hypothetically, for weeks. Do they really want to do that to keep Hardiman off the Court? How long can they last, realistically? Could be that McConnell’s preparing to call their bluff and find out, knowing that progressives will be hooting at Schumer and company to keep talking and talking and talking.
There’s a fourth possibility, though. Maybe McConnell … was simply misunderstood?
— Ed Whelan (@EdWhelanEPPC) January 27, 2017
On all nominations, existing rule continues to require 60. It's Senate precedent, not rule, that has changed on lower-ct and exec noms. 2/
— Ed Whelan (@EdWhelanEPPC) January 27, 2017
Yes, notes Whelan, McConnell believes that 67 votes are required to change a rule, which is what would be required to eliminate the filibuster for legislation. But eliminating the filibuster for SCOTUS nominee wouldn’t amount to a rule change; it would merely extend the precedent set by Reid and the Democrats in 2013 when they eliminated the filibuster for lesser presidential nominations. Presumably that can be done by simple majority. All McConnell means, perhaps, is that it’ll still take 60 votes to pass a bill — but maybe not to confirm a Supreme Court justice. Stay tuned, as we’ll hear more about this next week. Six days and counting until we find out who the nominee is.