Did Harry Reid change the requirement for Supreme Court confirmations at the same time that he did all other presidential nominations? Senate Democrats, led by Chuck Schumer, insist that they’ll use the filibuster to block pretty much anyone Republicans like from filling open seats on the top court, but Hugh Hewitt has been arguing for the last few weeks that Reid’s triggering of the nuclear option has eliminated the filibuster as a tool for Schumer to use. Today he poses the question to Senator Chris Murphy, who admits that a precedent has been set … for another rule change:
HH: Now I agree with you. I believe the filibuster, and have for years, is extra-Constitutional, and that the framers spelled out when supermajorities were necessary as with the ratification of a treaty or the impeachment of a president. They spelled it out. They didn’t spell it out for legislation. They didn’t spell it out for nominees. So Harry Reid changed it vis-à-vis the nominees. Straightforward question, Senator Murphy, that precedent has not yet been applied to a Supreme Court nominee, but it is clearly applicable, is it not?
CM: The precedent, yeah, I mean, I think the precedent of changing the rules in the middle of the Congress, right, was, you know, was the basis on changing the number of 60 to 50 for presidential appointees. So I assume that that precedent still holds. You can argue against it for policy grounds, but I’m not sure that the precedent changes in this Congress.
In other words, the rule change has to take place first. Mitch McConnell can’t rule that a cloture vote is out of order as things stand at the moment, which seems to be what Hugh has been arguing. But as Murphy concedes here, the only thing standing between them and a rule change is the kindness of Republicans in allowing Schumer to block Trump’s nominees. Thanks to Harry Reid, Senate Democrats have become the Blanche DuBois of politics:
HH: And so when a Supreme Court nominee comes up, it is not possible to stop them with, if they have Republican unanimity behind them, correct?
CM: Yeah, I guess, you know, I haven’t dug real deep into all the precedents and rules, but you know, I think ultimately what would stop that rules change from happening is more likely, you know, a number of Republicans like, you know, a number of Republicans who, you know, would rather have us working across the aisle on big issues like Supreme Court nominees and legislation. And listen, I think that the filibuster, the one benefit of the filibuster has historically been that it has forced the two parties to come together on big legislation, and on major nominations. And I think Reid’s position was that for the biggest nomination there is, the Supreme Court, it should be bipartisan. And for presidential appointments, which you know, frankly come and go a little bit more often, that if it was moved through with a partisan vote, it was less damaging than if a lifetime appointment to the Supreme Court was moved through on a partisan vote. And I understand that. I understand…
HH: But the DC Circuit, I mean, judges did go through on a 51 vote, right?
CM: Yeah, that’s right, and listen, everybody can, I can understand that people can argue that the DC Circuit is just as important as the Supreme Court, but I think, but I think Reid’s point was that there’s something special about the Supreme Court that should require that vote to be bipartisan. And you know, I understand that perspective.
What’s missing from Murphy’s formulation here is the belated righteousness of defending supermajority requirements that came from Schumer last week. Instead, Murphy seems to exhibit a little more humility over having backed Reid’s play in 2013 now that the shoe has fully transferred to the other foot. He’s not breathing fire and playing to the progressive bleachers on blocking Trump’s nominees; Murphy’s trying to sound reasonable in order to get that kindness from Republicans over the next couple of years.
That suggests that Schumer may not have much leverage even within his own caucus when it comes to a bare-knuckle fight over a Supreme Court nominee. If Trump nominates a real loon, Republicans would reject them anyway, but Murphy sees the writing on the wall if Schumer tries blocking any reasonable nomination. Republicans might want Democrats to work with them on “big issues” down the road, but they’re not going to stand for obstructionism for Schumer’s sake when it comes to Supreme Court nominations from a newly elected President. That kindness will go right out the window along with the 60-vote cloture requirement on Supreme Court confirmations — and with it any leverage Democrats might have on a future nomination. Functionally, it means that the 60-vote threshold is dead except in the most extreme case, and Murphy knows it. Schumer should understand that, too.