Senate Republicans have drawn an implied, but still hard line on the Supreme Court to ensure that Democrats will be forced to swallow President-elect Donald Trump’s imminent nomination to fill the vacancy left by the death of Justice Antonin Scalia. Politico reports that Republicans won’t come out and say it, but if Democrats push t00 hard against whomever Trump nominates, they may find Republicans can act like the Democrats and change the Senate rules to eliminate the 60-vote threshold to confirm Supreme Court nominees. Senators John Cornyn and Ted Cruz made it clear that filibustering Trump’s Supreme Court nominee won’t be tolerated:
“We’re going to confirm the president’s nominee one way or the other. And there’s an easy way and there’s a hard way,” said Senate Majority Whip John Cornyn (R-Texas). “They just need to accept that reality.”
“The Democrats will not succeed in filibustering a Supreme Court nominee,” said Sen. Ted Cruz, Cornyn’s Texas colleague. “We are going to confirm President Trump’s conservative Supreme Court justices.”
Both Democrats and Republicans are debating whether the super-majority requirement for Supreme Court nominations will survive. The Democrats are still mad as hell over how Senate Majority Leader Mitch McConnell kept President Obama’s nominee, Merrick Garland, who was nominated in February, from even getting a hearing. While we a talking about Merrick Garlan, we should note that a federal judge on Thursday dismissed a case that sought to force the Senate to take up Garland’s nomination. That should end his long-shot chance of being confirmed as a Supreme Court justice.
According to Politico, some Democrats are talking about payback. Sen. Harry Reid, who is retiring, said that Democrats should change the Supreme Court threshold had Clinton won. You can be sure the Democrats would have done that had the election gone their way.
In 2013 in a tough battle over Obama’s Cabinet confirmations Reid, then the majority leader, changed the rules to allow all nominees — except those to the Supreme Court — to be confirmed by a simple majority vote. Traditionally. You can read more about that here and here.
These nastier and nastier battles over Supreme Court appointments began with the Democrats fighting the confirmation Robert Bork in 1987, then Clarence Thomas a few years later. It became known as Borking and worsened during the presidency of George W. Bush, when Democrats also began blocking the confirmation of Circuit Court nominees.
As pointed out by my colleague streiff, one reason the Democrats may be more cooperative with Trump is simple arithmetic. Democrats are expected to lose at least six and maybe as many as nine Senate seats in the 2018 midterm elections.