Jazz wrote about this on Saturday, but the more voices of bewildered disapproval there are on the right, the better our chances of derailing this crazy train before it builds up steam.
The change is nowhere near a done deal: The proposal has not been widely circulated among Senate Republicans, and its backers say they would make the change only if they can get 67 votes for it on the floor. That means they would need broad support first among Republicans, then with more than a dozen Democratic supporters. Both parties would have to buy in — after pondering whether the shift would help them or hurt them.
But Sen. Lamar Alexander (R-Tenn.), who’s spearheading the proposal with Sen. Roy Blunt (R-Mo.), said the change would bring the Senate back to the way it operated before the presidency of George W. Bush, when the Democratic minority elevated the use of filibusters as a tactic to stymie judicial nominees. Alexander is a Senate institutionalist and deal maker, while Blunt is a member of leadership; both are confidants of Majority Leader Mitch McConnell (R-Ky.)…
“We’re witnessing a massive flip-flop in slow motion,” said Adam Jentleson, a spokesman for Senate Minority Leader Harry Reid (D-Nev.). “Democrats appreciate the vote of confidence from Republicans in the wisdom of our rules change.”
We confirmed nominees with a simple majority vote for 200 years, say Alexander and Blunt. Right. We also required executive and legislative approval before making sweeping policy changes for those same 200 years. That era, thanks to Obama’s executive power grabs, is coming to an end and his successors in both parties will build on his precedents. As the presidency grows more powerful, the case for maintaining the Senate filibuster to prevent him from dominating another branch with handpicked radicals grows stronger too.
If principle doesn’t convince you, though, the partisan interests here might. Given what the political landscape looks like for the GOP, why would they want to take the initiative in abolishing the SCOTUS filibuster right now? Like Jazz said, all they’re doing is making life easier for Obama over his last two years. If the threshold for confirmation is 60 votes, he knows he’s stuck with a more-or-less mainstream nominee for the Court. If he goes too far left, Republicans will filibuster even if he gets a few RINOs like Mark Kirk to go along. With a 51-vote threshold, people like Kirk and Susan Collins could be decisive. Looking past Obama’s term, the hard fact is that Hillary Clinton is the favorite to win in 2017, meaning that this rule change would probably end up benefiting her rather than a Republican. Even if Hillary gets beaten, the bluer 2016 electorate and unfavorable Senate map for Republicans means the Dems are basically assured of picking up Senate seats. The best-case scenario for McConnell and the GOP in 2017 is that they’re still in control but with a smaller majority than they have now. If President Cruz nominates, say, Miguel Estrada for SCOTUS and 48 Democrats instantly vote no, how likely is it that McConnell can prevent three blue-state Republicans like Kirk from voting with them?
The “strategy” in pushing this now, I take it, is to make it look like a principled decision so that, if/when a Republican president is sworn in with a Republican Senate, the new rule is already there waiting for him. If the GOP waits to nuke the SCOTUS filibuster until President Cruz names his first nominee, the media will screech that it’s a nakedly political move designed to make conservative radicals confirmable. If they nuke the rule now, while Obama’s still president, they can’t be attacked on that point. But … so what? Of course this move is political. It was political when Reid nuked the filibuster for Obama’s non-SCOTUS presidential appointees. If Democrats win big in 2016, with Hillary elected president and Reid back in charge of the Senate, he’ll go ahead and nuke the SCOTUS filibuster too and most of the hacks in the media who’d be shrieking if the GOP had done it will applaud. If Republicans are willing to base their strategy on something as momentous as Supreme Court vacancies on how media hypocrites react, we’re in more trouble than I thought. Meanwhile, by nuking the rule now, the GOP would be handing Reid a great gift: If the worst happens and he and Hillary end up in charge of government in 2017, the rule will already be in place for them. “Don’t blame me,” Reid will say after her first far-left nominee is confirmed with 51 votes. “Republicans put this on the books, not Democrats.” Why not force him to nuke the SCOTUS filibuster himself and at least absorb some criticism from the non-hackish parts of the media?
Speaking of which, a tangential but related thought I had over the weekend: If we do end up with a Republican president in 2017, isn’t it quite likely that we’ll end up with Ted Cruz as a SCOTUS nominee? Maybe not the nominee for the first vacancy — that’ll probably be Paul Clement — but he’s definitely a shortlister, and quite possible for the second. The reason is simple: Both wings of the GOP would prefer to see him in that role than in the Senate. Conservatives would thrill to the prospect of Justice Cruz crafting constitutional law for the next 40 years. The RINO donor class would thrill to the prospect of having him out of their hair, no longer able to engineer shutdowns. As a U.S. senator, former solicitor general of Texas, and Harvard Law grad, he’s amply qualified. The only suspense would be whether his colleagues in the Senate hate him so much that they’d refuse to confirm him or whether they’d bow to tradition in confirming a member from their own ranks. (They’d be thrilled to have Cruz out of their hair too.) He’ll be borked for sure if the SCOTUS filibuster is still intact; Senate Dems would be under incredible pressure to vote no from the lefty base, which will be telling themselves that Cruz is the most radical nominee in American history. Without the filibuster, he’s got a shot — Senate Republicans may hate Cruz but they’d be under incredible pressure from their own base to confirm. None of this, though, speaks to the question of timing. Why would Senate GOPers nuke the filibuster now, on the off-chance that everything lines up and someone like Cruz is nominated in three years, when they can just do it in 2017 or 2018?
Exit question: Why is Lamar Alexander pushing a rule that’ll help, in theory, to get hard-right nominees confirmed? Doesn’t he want mainstreamers?