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Will Trump's choice for the Supreme Court be subjected to a filibuster?

REUTERS/Gary Cameron
For most of constitutional history, the Senate has tried to minimize the politicization of Supreme Court nominations.

President Donald Trump has said that he has decided whom to nominate for the open seat on the Supreme Court and will announce it today. I haven’t seen a leak of whom he will nominate, but by the time you read this perhaps the name will be out there. My main purpose here is to preview the question of whether the nomination might be, will be or can be subjected to a filibuster.

First of all, for my fellow history buffs, there has never been an actual, full-bore, successful filibuster of a Supreme Court nomination. For most of constitutional history, the Senate has tried to minimize the politicization of Supreme Court nominations. But that norm is almost completely gone.

The first case that was a sort-of filibuster occurred in 1968, when Chief Justice Earl Warren announced his retirement. President Lyndon Johnson wanted to elevate his friend Abe Fortas, who was already an associate justice, to the chief justice-ship. Fortas was not a popular pick. A scandal had arisen over his finances, and Senate conservatives were angry over the many liberal rulings by the court during the Warren years. So they started a filibuster, and one cloture vote was taken, before LBJ withdrew the Fortas nomination. You can decide for yourself whether to count that as a successful filibuster or something just short of that. But the generalization is true in almost all previous cases that Supreme nominations that reach the Senate floor always get a vote.

The Garland nomination

Of course, there is the recent nomination of Judge Merrick Garland, which didn’t reach the floor because Senate Republicans, who held the Senate majority, refused to even give the Garland nomination a committee hearing. That also was technically not a filibuster. The refusal to give a Supreme Court nominee a committee hearing was unprecedented, but Republicans hid behind a bogus claim that there was a longstanding unwritten rule of not considering a Supreme nomination in the last year of a president’s term.

The Garland case may be quite relevant to what is about to happen. The nomination of the eminently qualified Garland expired when the new Congress convened Jan. 3. It would be a very classy move if Trump were to renominate Garland but, notwithstanding my inability to see the future, I predict that will not happen.

So, barring unforeseen developments, Trump will introduce today a nominee other than Garland. Until recently, Sen. Chuck Schumer, leader of the Senate Dems, has been saying that he would oppose any nominee who was “outside the mainstream.” I took that as a signal to Trump that he might be able to get his nominee through, without a filibuster, if he nominated someone relatively moderate.

I don’t know whether Trump will nominate someone moderate in hopes of avoiding a filibuster (I would guess not, but I don’t claim to know). He has released a list of likely picks that is loaded with very conservative jurists.

But the chances of a filibuster increased yesterday when Sen. Jeff Merkley, D-Oregon, announced that, as a retaliation for what the Republicans did on the Garland nomination, he planned to filibuster anyone that Trump nominates unless it is Garland.

'A stolen seat'

“This is a stolen seat,” Merkley told Politico. “This is the first time a Senate majority has stolen a seat.”

“Stolen” is a strong word, but it’s Merkley’s way of describing what the Republicans did to the Garland nomination. I can understand his argument. Next question is how many Democrats will go along with a nobody-but-Garland campaign, and the question after that is how many will it take, because the rules on that are in flux.

In 1917, the Senate first formalized the filibuster by adopting a rule that a filibuster could continue until two-thirds of the Senate vote for “cloture,” which is a fancy term for cutting off debate and forcing a vote. In 1975, Minnesota’s own Walter Mondale, then a senator, led a successful movement to reduce the cloture threshold to 60 votes. And, as of today, that is still the rule as it pertains to cutting off debate on a bill or a Supreme Court nomination.

But in 2013, when Democrats controlled the Senate and were frustrated by a record number of Republican filibusters of nominees for executive branch position and lower-level judicial positions, the Democrats pushed through a rule change to lower the votes needed to cut off debate on those lower-level nominations to a simple majority vote.

Exercising the 'nuclear option'

Two things you need to know about that 2013 change: First that it was done with just a simple majority vote (even though Senate rule changes normally required a two-thirds vote). Second, the Dems were able to change the rule without two-thirds by exercising the so-called “nuclear option.”

The absurdly named “nuclear option” (which refers to blowing things up, which is what the tactic does to the heads of senators on the losing side) is also called the “Constitutional option.”  It refers to a tactic of appealing to the chair of the Senate to declare that a matter is not a mere rule change but a “constitutional matter.” The text of the Constitution (which, by the way, does not say anything about filibusters) gives each house of the Congress to right to make its own rules, and establishes no supermajority to do so.

So a simple majority of the Senate, with a sympathetic presiding officer, can make or change a rule, such as reducing the number of votes necessary to cut off debate from 60 to 51.

OK, so when the Dems did that in 2013, their new rule still required 60 votes to cut off debate on a bill or – pause for drum roll – a confirmation vote on a Supreme Court nomination. Which means that, as of today, it would take 60 votes to cut off a filibuster on a Supreme Court nomination.

So, fast-forward to the current Senate. There are 52 Republicans and 48 Democrats (counting the two unofficial Democrats who caucus with the Dems). The presiding officer will be Republican Vice President-elect Mike Pence.  Not all Democrats have pledged to filibuster Trump’s Supreme Court nominee. But if at least 41 did agree to filibuster a Supreme nomination, that would be enough to block a final vote.

Unless …

Obviously, unless the Republicans decide to invoke the nuclear option and change the rule again so it takes only a majority to cut off debate on a Supreme Court nominee.

But …. (just one last shoe to fall in this annoyingly endless scenario) the Repubs would need at least 50 votes (plus Pence) to go nuclear. And several of the most moderate or least Trumpy senators have talked in the past about the importance of preserving what’s left of the filibuster.

So far as I know, not a single Republican senator has publicly expressed a willingness to break party ranks if it comes to a vote going “nuclear” to confirm a Supreme nominee. But they certainly haven’t all said what they would do if it came to that. If all the Dems held firm on a “nuclear” roll call, they would need at least three Repubs to get them to 51. Those who are mentioned as moderates, mavericks, or otherwise temperamentally suited to break ranks include Sens. John McCain, R-Arizona; Lindsey Graham, R-South Carolina; Susan Collins, R-Maine; and perhaps Ben Sasse, R-Nebraska, and maybe Jeff Flake of Arizona).

If it comes down to a nuclear showdown, and if all the Dems stick together (which is not at all certain), they would still need three Republicans to join them to reach 51 votes, not to reject a Trump nominee but to allow a filibuster against one to continue.

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Comments (13)

The pick

It is likely that the Democrats will filibuster, and it's likely that Republicans will invoke the nuclear option to break the filibuster, and confirm Trump's nominee. What the impact of this going forward, whether it means that the use of filibuster as a legislative tactic is ended remains to be seen.

What is kind of intriguing to me, are the unlikely contingencies. Trump, so far, has chosen confrontational courses of action. But will he back off with respect to a Supreme Court nominee? Will he choose someone who is willing to offer Senate Democrats enough hints of moderation which they can use to rationalize not supporting the filibuster?

Something I thought was interesting the dispute over the ousting of the acting attorney general, which is that news reports have suggested that Ms. Yates took Trump's campaign rhetoric into account in making her decision not to enforce Trump's executive order? Will senators take a similar position with regard to Trump's Supreme Court nominee? Traditionally, nominees before the Judiciary Committee have been taken at their word when they say they haven't formed opinions concerning controversial issue likely to come before the court. Although polite, this is certainly has been a fiction, the kind of lie politicians accept just to move the heck on. Will they accept those lies this time around?

Interesting times!

As you say, it depends on how extreme the nominee is, but given Republican control of Congress, I would predict that the Democrats will delay confirmation, but not prevent it.

Just to explore new shades of facial red...

Chuck Schumer should say:

"We are withholding a vote on any member of the Supreme Court until we have a popularly elected President of the United States. This is too important a decision to be left to a person who a majority of over 3 million citizens found to be unfit for this office".

McConnell just made stuff up to keep Garland out: Schumer should do the same.

The difference is that

The difference is that McConnell was majority leader when he kept Garland out. McConnell is still majority leader and Schumer is minority leader. Other than the filibuster, there isn't really anything else available to Schumer to stop the confirmation.

Unless the Nominee is Merrick Garland

I'd suggest we prevent confirmation,...

by any means available,...

for at least a year.

If we CAN'T prevent confirmation,...

then we keep careful track and howl to the moon,...

about every way the new "conservative,"...

i.e. pro-business, pro-big money court,...

makes decisions which allow business and financial interests to control the outcome of our elections,...

to completely avoid tax liability which would require them to assist in paying for the infrastructures on which their enterprises depend,...

reduce the ability of workers to demand fair and equal pay,...

and allow those business and financial concerns to freely rip off customers and clients,...

while removing any possibility or redress or recourse those who are ripped off might once have had.

At least we can make those whose only concern was forcing everyone else in the country to act according to their own version of religious "sharia law" when it comes to abortion,...

aware of what they have done to themselves and the rest of us by caring about NOTHING but that one issue.

I used to think many of those folk would vote for Hitler if he said he was "prolife,"...

but more and more I think that point is now rendered moot.

"Classy"

“…It would be a very classy move if Trump were to renominate Garland…”

Nothing about Mr. Trump's administration (so far) would qualify as "classy," so I don't expect anything like this to happen. He'll nominate a prominent right-winger, publicly accuse the media of being "unfair," or providing "fake news" when they (except for FOX and assorted other 'winger outlets) point out the ideological slant of the nominee, and after the usual huffing and puffing, the nominee is confirmed by the sycophants in the Senate. My children and grandchildren will still be dealing with the negative consequences of this catastrophic presidency long after I'm gone.

My guess

Trump may be using the Goldilocks strategy. One candidate is too conservative, one candidate too liberal, and so the third one, the middle one, must be just about right. The objective is to peel off the few conservative Democratic senators Trump needs to get the nomination passed without putting the filibuster rule in jeopardy.

Republicans in the senate are very reluctant to give up the filibuster altogether. As an essentially negative party, they are much more interested in preventing things happening, as opposed to making them happen. While putting a conservative on the court is the highest priority, doing so without abandoning the filibuster rule would be something of a sweeping victory for them.

For myself, while I wouldn't put it in precisely these terms, I would hope that all Democrats would oppose and filibuster all Trump nominations for the Supreme Court at least through his first term.

Outside the mainstream

In 2005, Chuck Schumer suggested President Bush nominate a "mainstream conservative". His suggestion was Sonia Sotomayor. Regardless of your opinion of Justice Sotomayor (and she's certainly not the most liberal justice), I don't think anyone would describe her as conservative. So when Senator Schumer calls for a justice in the mainstream, I think the Republicans take that as he will oppose any selection that would be a plausible pick for a Republican president. That may change Republican thinking to just go for the most conservative justice they can get 51 votes for and get rid of the filibuster.

What constitutes mainstream and conservative

have changed in the past dozen years, as has Sotomayor.
The conservative road no longer has a middle.

Schumer

Certainly Schumer and all other mainstream Democrats will oppose any Trump nomination. They will at the very least want to force Republicans to give up the filibuster.

This doesn't seem the place to comment on why the Supreme Court vacancy should not be filled by Trump, but I expect there will be more opportunities to do that down the road.

Get your facts straight

The article claims there was never a fully successful filibuster. Obviously you are not counting the majority party filibuster of Obama's appointment of Garland. Didn't their parliamentary procedure, unique in its dishonesty, block all consideration of the appointment. That now is the precedent - do whatever the hell you please, lying through your teeth about your motivation.

Here is one approach Democrats could take. We won't participate in hearings with any nominee appointed by a President until that President wins the popular vote. It would be a great way to respond to an unresponsive Senate leadership. Sort of like repeal and delay. Republicans obviously don't believe in filling seats in a timely way, so "honor" their tradition.

Technically

Judge Garland's nomination was never "filibustered," because it was never allowed to reach the Senate floor.

Filibuster is a tool of the minority

The filibuster is the only tool of the minority to prevent confirmation. The Republicans were the majority during the Garland nomination. Controlling the Senate agenda, they had more tools to prevent the confirmation.

What is suggested above for the Democrats to not participate in the hearings would be a PR disaster. And the hearings would move at rapid speed with no opposition.