GOP eye abolishing filibusters to shape Supreme Court
The Senate move would expand on changes that Democrats made using the ‘nuclear option.’
Top Senate Republicans are considering gutting the filibuster for Supreme Court nominees - a move that could yield big rewards for whichever party controls the White House and Senate after 2016.
The move, still in its early stages, reflects growing GOP confidence in its electoral prospects next year. But it could also have a major immediate impact if a justice such as 81-year-old Ruth Bader Ginsburg steps down, making it far easier for President Barack Obama to get a replacement confirmed.
The proposed change would expand on the dramatic move Democrats made in 2013, when they killed the 60-vote hurdle for executive branch nominations and almost all judicial nominees. Republicans have complained bitterly about the Democrats’ action ever since, saying it violated the Senate’s tradition of being a deliberative body where the minority holds big sway. But now, GOP supporters contend, it may be time to bring majority rule to votes on Supreme Court nominations, too.
The 60-vote filibuster threshold would remain for legislation.
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.).
“What we would like to do is adopt by rule the way the Senate has always operated,” argued Alexander, who said he is writing the plan with Sen. Mike Lee (R-Utah). “The history of the Senate has been up-or-down votes, as I call them, at 51.”
Just the talk of preserving the bulk of Democratic rules changes has some Democrats ebullient, though aides were cautious to address the Supreme Court proposal given its early stages.
“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.”
But a Democratic aide added that senators who support abortion rights could balk at the Supreme Court proposal, wary of an anti-abortion-rights president installing conservative justices under a GOP Senate.
Unlike the Democrats’ unilateral move, which they made using a simple majority to alter the Senate rules, Blunt said he plans to take up the proposal in February at the Senate Rules and Administration Committee, which he chairs. Then it would head to the floor, under a procedure that would require support from the two-thirds of the Senate traditionally required for rule changes.
The process reflects McConnell’s vow to empower committee chairmen like Blunt. Supporters also hope that making the rules change through so-called regular order would offer a permanent solution to how the filibuster has been used on nominees.
“Sens. Lee and Alexander have this idea that I think makes a lot of sense, which is to take it back through committee and pass a rule change that enjoys broad support,” said Majority Whip John Cornyn (R-Texas). “Not just going in and whoever happens to be in the temporary majority going in and changing the rules in their favor.”
Still, it’s unclear how much support the Supreme Court proposal will find in either party. Republicans are split on whether they should even keep the Democrats’ 2013 rule change, a question they failed to resolve at a conference meeting in December where Republicans hinted at the Supreme Court option. Democrats could be divided too - the Supreme Court exception they carved out in 2013 was meant to secure support from veteran senators reluctant to make such a radical change.
Sen. John McCain (R-Ariz.) said it would be “sheer hypocrisy” for Republicans not to revert to the old filibuster rules, given how forcefully they complained about the Democrats’ actions. If his view holds sway, all nominees for posts from low-level bureaucrat to Supreme Court chief justice would face a 60-vote threshold.
“We said this was outrageous what they did,” McCain said. “Not only how they did it, but what they did, OK? Some of my Republican colleagues seem to have forgotten that. Some selective amnesia.”
Alexander argues that it’s actually more in keeping with tradition to require simple majority votes for all nominees, something he said the Senate practiced for 200 years. He said his party’s anger toward Democrats was always focused on how they implemented their change - using the “nuclear option” maneuver with no buy-in from the minority.
“I understand that Sen. McCain’s angry about the Senate rules change, but I am too,” Alexander said. “The problem with what the Democrats did in November of 2013 was not what they did, but the way they did it.”
The Republicans’ deliberative pace means that the Senate will probably vote on two key nominees - Ash Carter for defense secretary and Loretta Lynch for attorney general - before any rules change takes effect. Confirmation hearings for Lynch will begin next week, while Carter will come before the Armed Services Committee on Feb. 4. But unlike those two special cases, who are likely to be confirmed, other Obama nominees in the pipeline may move much more slowly.
Judiciary Committee Chairman Chuck Grassley (R-Iowa), whose panel will consider Lynch and any judgeship nominees, indicated that he favors keeping the 51-vote threshold the Democrats imposed, especially because the Senate could flip again in 2016.
“Republicans could go back. But Democrats [could] go back, so you’re going to have one set of rules for Republicans and one set of rules for Democrats?” Grassley said. “Republicans are going to be hurt either way.”
So far this year, Senate Republicans have been more focused on other priorities, such as opening the floor to amendment votes on legislation and getting the Keystone XL pipeline bill approved. Most Republicans questioned on the issue this week had little to say about the Senate rules, other than saying that any change should go through committee and be subject to 67 votes in front of the full chamber.
“The discussion about that has faded off the radar screen, hasn’t it?” Sen. Roger Wicker (R-Miss.) said when asked about the filibuster debate. “Getting started on regular order has maybe taken precedence over that issue.”
Confirming nominees before finishing the Senate rules isn’t necessarily optimal to a new Senate majority that is trying to do things by the book. But changing the way filibusters work - particularly on Supreme Court nominees - is going to be hard work.
“We’re going to take a look at whether this can be done the traditional way, which requires, effectively, a very heavy lift,” said Sen. John Thune (R-S.D.). “I don’t sense a lot of urgency about this.”
By Burgess Everett and Seung Min Kim. 1/23/15 6:36 PM EST
Source
Top Senate Republicans are considering gutting the filibuster for Supreme Court nominees - a move that could yield big rewards for whichever party controls the White House and Senate after 2016.
The move, still in its early stages, reflects growing GOP confidence in its electoral prospects next year. But it could also have a major immediate impact if a justice such as 81-year-old Ruth Bader Ginsburg steps down, making it far easier for President Barack Obama to get a replacement confirmed.
The proposed change would expand on the dramatic move Democrats made in 2013, when they killed the 60-vote hurdle for executive branch nominations and almost all judicial nominees. Republicans have complained bitterly about the Democrats’ action ever since, saying it violated the Senate’s tradition of being a deliberative body where the minority holds big sway. But now, GOP supporters contend, it may be time to bring majority rule to votes on Supreme Court nominations, too.
The 60-vote filibuster threshold would remain for legislation.
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.).
“What we would like to do is adopt by rule the way the Senate has always operated,” argued Alexander, who said he is writing the plan with Sen. Mike Lee (R-Utah). “The history of the Senate has been up-or-down votes, as I call them, at 51.”
Just the talk of preserving the bulk of Democratic rules changes has some Democrats ebullient, though aides were cautious to address the Supreme Court proposal given its early stages.
“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.”
But a Democratic aide added that senators who support abortion rights could balk at the Supreme Court proposal, wary of an anti-abortion-rights president installing conservative justices under a GOP Senate.
Unlike the Democrats’ unilateral move, which they made using a simple majority to alter the Senate rules, Blunt said he plans to take up the proposal in February at the Senate Rules and Administration Committee, which he chairs. Then it would head to the floor, under a procedure that would require support from the two-thirds of the Senate traditionally required for rule changes.
The process reflects McConnell’s vow to empower committee chairmen like Blunt. Supporters also hope that making the rules change through so-called regular order would offer a permanent solution to how the filibuster has been used on nominees.
“Sens. Lee and Alexander have this idea that I think makes a lot of sense, which is to take it back through committee and pass a rule change that enjoys broad support,” said Majority Whip John Cornyn (R-Texas). “Not just going in and whoever happens to be in the temporary majority going in and changing the rules in their favor.”
Still, it’s unclear how much support the Supreme Court proposal will find in either party. Republicans are split on whether they should even keep the Democrats’ 2013 rule change, a question they failed to resolve at a conference meeting in December where Republicans hinted at the Supreme Court option. Democrats could be divided too - the Supreme Court exception they carved out in 2013 was meant to secure support from veteran senators reluctant to make such a radical change.
Sen. John McCain (R-Ariz.) said it would be “sheer hypocrisy” for Republicans not to revert to the old filibuster rules, given how forcefully they complained about the Democrats’ actions. If his view holds sway, all nominees for posts from low-level bureaucrat to Supreme Court chief justice would face a 60-vote threshold.
“We said this was outrageous what they did,” McCain said. “Not only how they did it, but what they did, OK? Some of my Republican colleagues seem to have forgotten that. Some selective amnesia.”
Alexander argues that it’s actually more in keeping with tradition to require simple majority votes for all nominees, something he said the Senate practiced for 200 years. He said his party’s anger toward Democrats was always focused on how they implemented their change - using the “nuclear option” maneuver with no buy-in from the minority.
“I understand that Sen. McCain’s angry about the Senate rules change, but I am too,” Alexander said. “The problem with what the Democrats did in November of 2013 was not what they did, but the way they did it.”
The Republicans’ deliberative pace means that the Senate will probably vote on two key nominees - Ash Carter for defense secretary and Loretta Lynch for attorney general - before any rules change takes effect. Confirmation hearings for Lynch will begin next week, while Carter will come before the Armed Services Committee on Feb. 4. But unlike those two special cases, who are likely to be confirmed, other Obama nominees in the pipeline may move much more slowly.
Judiciary Committee Chairman Chuck Grassley (R-Iowa), whose panel will consider Lynch and any judgeship nominees, indicated that he favors keeping the 51-vote threshold the Democrats imposed, especially because the Senate could flip again in 2016.
“Republicans could go back. But Democrats [could] go back, so you’re going to have one set of rules for Republicans and one set of rules for Democrats?” Grassley said. “Republicans are going to be hurt either way.”
So far this year, Senate Republicans have been more focused on other priorities, such as opening the floor to amendment votes on legislation and getting the Keystone XL pipeline bill approved. Most Republicans questioned on the issue this week had little to say about the Senate rules, other than saying that any change should go through committee and be subject to 67 votes in front of the full chamber.
“The discussion about that has faded off the radar screen, hasn’t it?” Sen. Roger Wicker (R-Miss.) said when asked about the filibuster debate. “Getting started on regular order has maybe taken precedence over that issue.”
Confirming nominees before finishing the Senate rules isn’t necessarily optimal to a new Senate majority that is trying to do things by the book. But changing the way filibusters work - particularly on Supreme Court nominees - is going to be hard work.
“We’re going to take a look at whether this can be done the traditional way, which requires, effectively, a very heavy lift,” said Sen. John Thune (R-S.D.). “I don’t sense a lot of urgency about this.”
By Burgess Everett and Seung Min Kim. 1/23/15 6:36 PM EST
Source