Green Room

Specter Defection Will Haunt Dems On Souter Replacement

posted at 7:02 am on May 1, 2009 by

News is breaking that Supreme Court Justice David Souter is retiring. There will be a fight over his replacement, for sure. And Arlen Specter switching may have given Republicans a trump card to block an unacceptable replacement.

Everyone, including me, has been blogging about how Specter defecting to the Democrats puts the Democrats close to a filibuster proof majority in the Senate, potentially allowing Obama to push through his agenda. And this seems true on most subjects.

But ironically, Specter’s defection may give Republicans the ability to filibuster judicial nominees at the Judiciary Committee level, so the nominees never get out of committee.

Huh, you say. Here’s the explanation, from Professor Michael Dorf of Cornell Law School at his excellent blog, Dorf on Law, written two days ago before Souter’s retirement was in play:

Does Arlen Specter’s defection from R to D strengthen the President’s hand in Congress? Perhaps overall but not on judicial appointments because breaking (the equivalent of) a filibuster in the Senate Judiciary Committee requires the consent of at least one member of the minority. Before today, Specter was likely to be that one Republican. Now what?

The link in Dorf’s post is to Congress Matters, which has the Senate Judiciary Committee rule:

IV. BRINGING A MATTER TO A VOTEThe Chairman shall entertain a non-debatable motion to bring a matter before the Committee to a vote. If there is objection to bring the matter to a vote without further debate, a roll call vote of the Committee shall be taken, and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with ten votes in the affirmative, one of which must be cast by the minority.

Now this is interesting. Specter could allow a nominee out of committee if Specter was a member of the Republican minority, but as part of the majority, he’s just another vote. Here are the other Republicans: Orrin Hatch, Chuck Grassley, Jon Kyl, Jeff Sessions, Lindsey Graham, John Cornyn, and Tom Coburn.

The weak link is Lindsey Graham, who was a member of the Gang of 14. If Graham says the course, the Republicans may not be able to stop runaway spending, military retrenchment, and an interrogation witch hunt. But Specter may have handed Republicans a gift.

And how fitting that Joe Biden arranged it all by convincing Specter to switch. Thanks, Joe. I’m sure your boss will appreciate your service as he ponders who he will nominate for the Supreme Court.

Cross-posted with updates at Legal Insurrection Blog

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Comments

Arlen’s mere presence in a political party seems to ensure ill fortune. I wonder if he has the same effect on birthday parties and such.

Akzed on May 1, 2009 at 8:20 AM

well, okay then.

ExTex on May 1, 2009 at 8:21 AM

The one problem with this is that the Senate hasn’t officially changed Arlen’s status yet. He remains a Republican. So the worst part about this is that he’s a declared democrat with all the pressures and responsibilities required by their fund-raising for him, but he’s still our party.

Trent1289 on May 1, 2009 at 8:23 AM

Lindsey Graham will give the vote to them pretty easily. However since he’s generally a little less liberal than Arlen Specter it might require a nominee who is a little less liberal than Obama wants to put up.

I don’t think this is a game changing proposition but I think it’ll definitely have an effect.

Kronos on May 1, 2009 at 8:23 AM

House breaking odds on another GOP rollover. Place your bets.

Fletch54 on May 1, 2009 at 8:25 AM

Of course a simple majority vote can change this rule.

Subject to filibuster of course.

MarkTheGreat on May 1, 2009 at 8:28 AM

If Specter stays on the committee, does this mean one of the existing Democrats has to be kicked off and a new Republican named to it?

Or are they going to claim that Specter’s defection entitles them to another seat.

MarkTheGreat on May 1, 2009 at 8:28 AM

STFU LEGAL INSURRECTION

NOBODY, AND I MEAN NOBODY MESSES WITH JOE

/hehe

blatantblue on May 1, 2009 at 8:31 AM

Be careful what you wish for… As long as the Republicans continue to be the party of “no,” they continue to alienate the middle, which they need. Since we all know that a fight over Supreme Court justices is a fight over Roe v. Wade, the Republicans should remember that more Americans want the legislation to remain on the books than don’t. Things being the way they are in this country, I doubt most Americans are in the mood for a fight — A Republican’s Last Stand. It’s time for the GOP to become gracious losers and woo the center back into the fold. You get more with honey than vinegar.

Halli Casser-Jayne
author, A YEAR IN MY PAJAMAS WITH PRESIDENT OBAMA, The Politics of Strange Bedfellows

The CJ Political Report on May 1, 2009 at 8:32 AM

I hate to say this, but I have no faith in Grahamnesty. He is starting from zero and will have to prove himself.

ladyingray on May 1, 2009 at 8:36 AM

House breaking odds on another GOP rollover. Place your bets.

Fletch54 on May 1, 2009 at 8:25 AM

I GARONTEE !!!!!!!

GrayDog on May 1, 2009 at 8:38 AM

The CJ Political Report on May 1, 2009 at 8:32 AM

*sniff sniff*

Either I smell Spam or someone farted stinkily.

Sekhmet on May 1, 2009 at 8:55 AM

Has Souter ever voted with conservatives? Even once? If the answer is no, then his retirement is a big yawanfest.

angryed on May 1, 2009 at 9:09 AM

Be careful what you wish for… As long as the Republicans continue to be the party of “no,” they continue to alienate the middle, which they need.
The CJ Political Report on May 1, 2009 at 8:32 AM

No, what alienates people is a lack of principles. The “middle” doesn’t exist. People have positions on issues, or they don’t. The people that don’t care, you don’t lose their vote by taking a stand. The people that DO care, you do lose when you stand against them or fail to stand with them. This is true with individual issues, and those issues sum to make up a party’s platform.

Overall, the “middle” is closer to the right. So if the GOP wants to succeed, they’ll stay closer to the right.

hawksruleva on May 1, 2009 at 9:20 AM

I hate to say this, but I have no faith in Grahamnesty. He is starting from zero and will have to prove himself.

ladyingray on May 1, 2009 at 8:36 AM

Well, he’s nothing but a McCain stooge, so maybe McCain will help him take a stand.

snort.

hawksruleva on May 1, 2009 at 9:21 AM

I like the idea of bringing pressure on Graham to actually counter the Dems and be a… gasp… Republican! He’ll fold like an accordion but the lesson could be… enlightening.

karl9000 on May 1, 2009 at 9:23 AM

It’s time for the GOP to become gracious losers and woo the center back into the fold. You get more with honey than vinegar.

The CJ Political Report on May 1, 2009 at 8:32 AM

The democrats were never gracious losers, and filibustered every chance they got. And they seem to have done just fine in the last election. And SCOTUS justices are for life. So thanks for the advice, sweetie, but no thanks.

Tanya on May 1, 2009 at 9:30 AM

Grunt all you like…we see how effective the party has been in exile thus far.

The CJ Political Report on May 1, 2009 at 10:00 AM

“The trend away from the GOP is being seen nationwide. The Pew Research Center reported Wednesday that just 23 percent of voters self-identify as Republicans, down from 30 percent in 2004. Democratic Party identification has increased only slightly, the Pew survey found, but the gap between the two parties has grown from three points to 12 points.”

Time to get real, folks.

The CJ Political Report on May 1, 2009 at 10:02 AM

Of course a simple majority vote can change this rule.

Subject to filibuster of course.

MarkTheGreat on May 1, 2009 at 8:28 AM

I remember hearing that rule changes aren’t subject to the filibuster.

Count to 10 on May 1, 2009 at 10:19 AM

Pew says:

The trend away from the GOP is being seen nationwide.

Meanwhile, over at Rasmussen:

For just the second time in more than five years of daily or weekly tracking, Republicans now lead Democrats in the latest edition of the Generic Congressional Ballot.

A new Rasmussen Reports national telephone survey found that 41% would vote for their district’s Republican candidate while 38% would choose the Democrat. Thirty-one percent (31%) of conservative Democrats said they would vote for their district’s Republican candidate.

So who to believe? There’s no question that the GOP brand is suffering right now. But I think the Rasmussen info is more significant than Pew, because self-identified independents have to pick someone to vote for – and usually a Dem or a Republican are their only choices. I don’t really care if they don’t call themselves GOP as long as they vote GOP. And the Rasmussen generic ballot suggests they’re increasingly leaning toward doing just that.

Missy on May 1, 2009 at 10:21 AM

If Specter stays on the committee, does this mean one of the existing Democrats has to be kicked off and a new Republican named to it?

Or are they going to claim that Specter’s defection entitles them to another seat.

MarkTheGreat on May 1, 2009 at 8:28 AM

It was apparently promised to him by the leadership, but the Democrats have to vote on it, and a number of them aren’t happy about it. The Senate Republicans should vote in a replacement, if they are allowed.

Count to 10 on May 1, 2009 at 10:23 AM

So who to believe? There’s no question that the GOP brand is suffering right now. But I think the Rasmussen info is more significant than Pew, because self-identified independents have to pick someone to vote for – and usually a Dem or a Republican are their only choices. I don’t really care if they don’t call themselves GOP as long as they vote GOP. And the Rasmussen generic ballot suggests they’re increasingly leaning toward doing just that.

Missy on May 1, 2009 at 10:21 AM

I get the impression that there are a lot of Conservatives that are too disgusted with how squishy the Republican party has been to affiliate with them, but will vote against the Democrat every time.

Count to 10 on May 1, 2009 at 10:25 AM

you meant to say “stays” the course and not “says” the course right?

Kaptain Amerika on May 1, 2009 at 10:41 AM

Grunt all you like…we see how effective the party has been in exile thus far.

The CJ Political Report on May 1, 2009 at 10:00 AM

Condescend all you like, we see how effective the party without noticeable principles has been thus far.

TheUnrepentantGeek on May 1, 2009 at 11:28 AM

but will vote against the Democrat every time.

Yes – if they can be motivated to vote at all. Some conservatives stayed home in 2008 because they were unhappy with McCain, but I seriously doubt they’ll be doing that next time.

Missy on May 1, 2009 at 11:48 AM

Interesting, although if Hillary Clinton decides she wants to ditch State for a lifetime appointment to the court, I doubt that Republicans would vote against her.

Buy Danish on May 1, 2009 at 11:50 AM

and he’ll come back and say “that was my plan all along”

LtE126 on May 1, 2009 at 11:55 AM

Interesting, although if Hillary Clinton decides she wants to ditch State for a lifetime appointment to the court, I doubt that Republicans would vote against her.

Buy Danish on May 1, 2009 at 11:50 AM
—–
Interesting indeed.

Would she be Justice Clinton or Justice Rodham, do you suppose?

acat on May 1, 2009 at 12:56 PM

Grunt all you like…we see how effective the party has been in exile thus far.

Bite me, it’s been four months. And tell Axelrod I said “Hi”.

eyedoc on May 1, 2009 at 1:18 PM