Republicans are vowing that President Trump’s appointment of a Supreme Court Justice to replace the late Justice Scalia will be confirmed no matter what Democrats do. Politico reports the unspoken threat underlying the GOP’s confidence is that, if necessary, they can end the Senate filibuster for confirmation:
Republicans won’t come out and say it, but there’s an implicit threat in their confidence: If Democrats play things the wrong way, they might find themselves on the wrong end of a legacy-defining change to Senate rules that scraps the chamber’s 60-vote threshold to confirm Supreme Court nominees.
“We’re going to confirm the president’s nominee one way or the other. And there’s an easy way and there’s a hard way,” said Senate Majority Whip John Cornyn (R-Texas). “They just need to accept that reality.”
“The Democrats will not succeed in filibustering a Supreme Court nominee,” said Sen. Ted Cruz, Cornyn’s Texas colleague. “We are going to confirm President Trump’s conservative Supreme Court justices.”
Democrats are now in a quandary. Do they come out guns blazing against Trump’s nominee, as some have suggested, or do they hold their fire for future battles. Even apart from the risk of the GOP activating the nuclear option, there’s a danger to Democrats in going all-out against Trump’s nominee. Several of the Democratic Senators who would need to vote no in order to block the nominee will be up for reelection in red states in 2018. Any effort to block Trump’s selection will almost certainly become a campaign issue and could lead to further Democratic losses in the Senate making future confirmation battles that much harder.
Democrats are well aware that Trump has a good chance of filling another seat before his first term is out. Fighting a futile battle now might satisfy some of the progressive base but, when it fails, it will make it harder to ramp up the outrage machine later on. And it’s the next pick that has Democrats really worried because that’s the one with the potential to overturn Roe v. Wade. Whatever happens, it’s clear that Democrats have only themselves to blame that the nuclear option is even on the table:
“I mean, [Democrats] set the standard,” said Sen. Orrin Hatch (R-Utah), the most senior Republican senator and a former Judiciary chairman. “They really screwed up the rules. Frankly, they did it for pure political purposes. The Republicans are not limited now.”
Hatch is referring to Sen. Harry Reid’s decision to use the “nuclear option” in 2013. After that change, Reid had a “victory party” with liberal activists. From a 2013 Washington Post account:
Previous majorities had threatened to upend filibuster rules in this manner, but relying on a simple majority vote had been used only for relatively minor procedural changes to how amendments were handled, never to eliminate the supermajority requirement altogether. Before Thursday, the standard precedent was that major rule changes needed a two-thirds majority. The change was so significant that Reid and his leadership team held a victory party with liberal activists afterward in a room just off the Senate floor.
It’s worth noting that just last month, when Democrats expected to win the Senate and the White House, Harry Reid was once again threatening to end the filibuster for Supreme Court nominees. “It’s clear to me that if the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I’ve told ’em how and I’ve done it, not just talking about it. I did it in changing the rules of the Senate. It’ll have to be done again,” Reid told Talking Points Memo.