The Perfect Storm On The Horizon That May Kill The Supreme Court Filibuster

Senate Majority Leader Mitch McConnell of Ky., left, joined by Senate Majority Whip John Cornyn of Texas, meets with reporters on Capitol Hill in Washington, Tuesday, Jan. 27, 2015, to discuss the status of the Keyst... Senate Majority Leader Mitch McConnell of Ky., left, joined by Senate Majority Whip John Cornyn of Texas, meets with reporters on Capitol Hill in Washington, Tuesday, Jan. 27, 2015, to discuss the status of the Keystone XL Pipeline bill, following their weekly policy luncheon. (AP Photo/J. Scott Applewhite) MORE LESS
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Divisions among Senate Republicans have burst a trial balloon floated in recent days by two top lieutenants of Majority Leader Mitch McConnell to eliminate the 60-vote rule for confirming Supreme Court nominees.

That doesn’t mean the idea is dead — it’s just on the shelf, ready to make a comeback when the situation calls for it. The most likely situation? A perfect storm of a White House and Senate controlled by the same party with a Senate minority threatening to filibuster a Supreme Court nominee. It’s not a hard scenario to imagine, especially for Republicans optimistic about their prospects of recapturing the White House in 2016.

The push to kill the filibuster for Supreme Court nominees is led by Sen. Lamar Alexander (R-TN), who chairs the powerful Health, Education, Labor and Pensions Committee; Sen. Roy Blunt (R-MO), the fifth-ranked Republican; and Sen. Mike Lee (R-UT), a tea party darling.

Alexander argues that because the Senate custom has been not to engage in the filibuster of Supreme Court nominees, any change to the rule would merely enshrine that long tradition of deferring to the President’s nominee.

“That’s the way it’s been for 200 years. I mean, there’s never been a filibuster for the Supreme Court justices,” Alexander told TPM. “Even Clarence Thomas. No Supreme Court justice has ever been denied his seat by a filibuster.”

The arms-race toward greater filibusters in 21st century will come to a head as four of the nine justices on the closely divided Supreme Court will have crossed the average retirement age of 78 by the 2016 election. The enormous stakes will put pressure on the party out of power to filibuster a nominee who could entrench or transform the law on contentious issues like abortion, campaign finance, voting rights and same-sex marriage, which have split the court 5-4.

Democrats have already set the key precedent by using the “nuclear option” to end the filibuster for non-Supreme Court nominations in 2013.

“I believe that the line drawn between all other nominations and Supreme Court nominations creates a precedent which will not survive the first time a Senate minority filibusters the Supreme Court nominee of president of the other party,” said Rich Arenberg, a Brown University professor and former aide to Sen. Carl Levin (D-MI) who co-authored a book called Defending the Filibuster: Soul of the Senate.

For now, Alexander’s plan faces opposition from the same faction of GOP senators that loudly objected to Democrats’ rule change. Sens. John McCain (R-AZ), Lindsey Graham (R-SC), and Kelly Ayotte (R-NH) each told TPM in separate interviews that they would oppose their party’s plan to scrap the filibuster for the Supreme Court.

Sen. John McCain, R-Ariz., center, takes a question as he, Sen. Kelly Ayotte, R-N.H., left, and Sen. Lindsey Graham, R-S.C., right, on Capitol Hill. (AP Photo/Ann Heisenfelt)

“It’s hypocrisy,” McCain told TPM. “What I support is us going back to what we did away with and complained about bitterly when [Democrats] did it.”

It is true that no Supreme Court nomination in U.S. history has been rejected due to a filibuster — even the most contentious ones. Reagan nominee Robert Bork failed 42-58 in an up-or-down vote. George H. W. Bush’s nominee Clarence Thomas was narrowly confirmed 52-48 after Democrats allowed a vote.

“The tradition of the Senate since Thomas Jefferson wrote the rules has been to have a majority up-or-down vote on a president’s nominee,” Alexander said in an interview. “That’s what Senator Lee and I would like to see us adopt by rule.”

But that was a bygone era when the filibuster was rarely used. In the mid-2000s Democrats escalated their use of judicial filibusters, including an unsuccessful attempt to deny a vote on Samuel Alito. (The obstruction prompted Senate Republicans, then with McConnell as the No. 2, to threaten to end the Supreme Court filibuster.) After losing control of Congress in 2007, Republicans elevated their use of the filibuster across-the-board to unprecedented levels.

“I do think that pressures for majority cloture for Supreme Court nominees could climb if Republicans regain the White House, assuming the GOP keeps control of the Senate,” said Sarah Binder, a political science professor at George Washington University and Senate expert. “And if a GOP president were to nominate someone clearly unacceptable to a Democratic minority, I wouldn’t be surprised to see Senate Republicans rally around banning filibusters of Supreme Court nominees.”

For now, though, conservatives worry that ending the Supreme Court filibuster would accomplish little except make it easier for President Barack Obama to appoint a successor to Justice Ruth Bader Ginsburg, 81, the leader of the Court’s liberal wing, whose retirement has been anticipated for years. (Ginsburg maintains that she has no plans to step down.)

“I’ve been in the camp that we should put the rules back where they were,” Ayotte told TPM.

The proposal by McConnell’s allies could be an attempt to lay the groundwork for 2017, should Republicans win the presidency. They aren’t talking about the nuclear option just yet — Alexander said he wants to change the rules through regular order, requiring approval by the Rules and Administration Committee and two-thirds of the full Senate.

From left, Chief Justice John G. Roberts and Supreme Court justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor stand before President Obama’s State Of The Union address on Tuesday, Jan. 20, 2015, on Capitol Hill in Washington. (AP Photo/Mandel Ngan, Pool)

But Democrats say they don’t want to scrap the Supreme Court filibuster. It’s “something we never supported” while controlling the Senate and “will never pass” under regular order, said Sen. Chuck Schumer (NY), the No. 3 Democrat.

“Even when [Republicans] were filibustering judges, filibustering nominees, we always felt the Supreme Court should be 60. And I think that view is very strong in our caucus,” Schumer told reporters in response to a question from TPM.

Even Sen. Jeff Merkley (D-OR), a leading voice against the filibuster, told TPM he doesn’t want to eliminate completely the blocking tactic for Supreme Court nominees. Instead he wants to implement a “talking filibuster” that requires an obstructing minority to take to the Senate floor and talk endlessly until one side gives up.

Arenberg says the only way to prevent the death of the filibuster is to reverse Democrats’ rule change, something Republicans discussed last month and decided not to do.

“Merely allowing the status quo to prevail keeps the Senate on a slippery slope,” he said in an email. “As I have said, the existing 3/5-vote cloture on Supreme Court nominations will not survive a filibuster which will entice the majority to use the nuclear option again.”

McConnell, who in 2013 threatened to wipe away the filibuster for everything if Democrats changed the rules on their own, last week acknowledged his internal roadblocks.

“I have a divided conference on this issue,” he told USA Today. “There is no consensus at the moment. And I think where we’re probably going to end up is with the status quo.”

That’s the sound of a calm before the storm. In the coming years the filibuster will likely be the only thing standing in the way of the party in power to remake the Supreme Court — and the law — in their image for generations to come.

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