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.
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.