President Trump’s announcement of his Supreme Court nominee Tuesday evening has already sparked a fight – but it may not result in the political nuclear war that some anticipate.
The common war scenario in Washington is this: Instead of allowing a simple majority vote, Democrats will attempt to block the nominee by requiring 60 votes for confirmation, a tool they've rarely taken out of their toolbox in modern history for such votes.
If the maneuver succeeds, the thinking goes, that will force Republicans to muscle through their nominee by unilaterally blowing up Senate rules for Supreme Court nominees – detonating the so-called “nuclear option.” That would set a lasting precedent, effectively removing the minority party's only check on a president's nominees for the highest court.
As such, deploying that weapon would further erode minority-party rights in the Senate, further empower the executive branch, and perhaps even further politicize the courts.
Mr. Trump has urged Senate Republicans to pull this trigger if necessary. But it looks like Senate majority leader Mitch McConnell (R) of Kentucky will resist, at least for now.
After five terms in the Senate, leader McConnell well knows that Republicans will be in the minority again some day. They might need that 60-vote threshold for Supreme Court nominees to protect their own rights and help preserve the balance of power – both within Congress and between the branches.
No matter how a voter might feel about McConnell, he’s a student of the Senate and wants to defend it as an institution, explains Ross Baker, a political science professor at Rutgers University in New Brunswick, N.J. “He would be really, really loath to extend the nuclear option to Supreme Court nominees.”
Whether it will withstand the forces of partisanship or expediency remains to be seen, but McConnell knows the importance of Senate rules, whether he's playing offense or defense.
He was deeply disturbed when in 2013, Democrat Harry Reid, then the Senate majority leader from Nevada, unilaterally swept aside the 60-vote threshold for all presidential appointees except the Supreme Court. Senator Reid did that to get around Republican obstruction of President Obama’s nominees.
That move has come back to bite them. Now, Democrats are impotent to block any of President Trump’s cabinet picks except to the Supreme Court. The increasing power of the presidency – lamented by Democrats under George W. Bush and by Republicans under Obama – is more evident than ever.
Senate confirmed Hardiman and Gorsuch with no dissenting votes
Sen. Jeff Merkley (D) of Oregon announced on Monday that he would demand the 60-vote threshold, or filibuster, to proceed on the confirmation – unless it's Merrick Garland, President Obama's nominee last year. Senator Merkley told POLITICO that he considers the Supreme Court vacancy a seat “stolen” by Republicans, who denied Judge Garland even a hearing after Justice Antonin Scalia died nearly a year ago.
Meanwhile, progressive organizations are gearing up to do battle against the nominee.
McConnell had hoped Democrats would not use the filibuster. He points out that Republicans never required a supermajority for high-court confirmations under Presidents Clinton and Obama – even though that tool was at their disposal. Only once has it been used against a Supreme Court nominee in modern history, and that was in a failed attempt by Democrats to block Samuel Alito in 2006.
McConnell has many times expressed confidence that Trump’s nominee will be confirmed. Period. Some have taken this to be a subtle hint that Republicans will be willing to use the nuclear option as a last resort. And McConnell seems to have left this door open by commenting that “it’s way too early” to say what Republicans will do in the event of a filibuster.
But he also is talking as if Republicans will never need to resort to the nuclear option.
“I think we're going to get a really outstanding nominee, who will be very hard to argue against because the president has been working on this for some time," said McConnell.
Other Republicans agree.
They say that over the course of the next few months of hearings and private meetings with senators, that the nominee’s qualifications will become apparent, that Democrats will overplay their hand, and that the public will side with a president who made his judicial preferences quite clear during his campaign.
“I think [McConnell] is hoping that as the air gets let out of this balloon a little bit, and as people get removed from the election, that they understand that this is not a venue for retribution, it’s one of the most important duties the Senate has to engage in,” says Josh Holmes, former chief of staff for McConnell.
It’s impossible to say how things will look weeks or months from now, says Gary Marx, a senior adviser to the conservative group Judicial Crisis Network. “There always has to be context” – who the nominee is and the reaction to him or her.
The most talked about top contenders – Judge Thomas Hardiman and Judge Neil Gorsuch – were both confirmed by the Senate as federal appellate judges without any dissenting votes. It might be awkward for Democrats to find reasons now to object.
The Judicial Crisis Network could bring up that fact in its planned $10 million ad blitz to support Trump’s nominee.
Why Democrats may choose to 'keep their powder dry'
The ad campaign will reportedly be aimed mostly at the 10 Senate Democrats up for reelection in 2018 in states won by Trump. That political circumstance is another reason behind Republicans’ confidence that they can confirm their nominee.
Indeed, Sen. Heidi Heitkamp (D) of North Dakota, has said she wants a simple up-or-down vote on the nominee.
And Sen. Joe Manchin (D) of West Virginia, perhaps the most conservative Democrat in the Senate, told reporters on Tuesday that he’s “not a filibuster-type guy.” He believes the treatment of Garland was “horrible,” but added that “two wrongs don’t make a right.” He’ll judge the new nominee on the merits, he explained, with not “one iota” of consideration given to the fact that he’s from a red state.
Some Democrats may also choose to “keep their powder dry” for this nominee, says Baker, since it would be a Republican president filling a seat held by a Republican appointee – an even swap, so to speak.
Last, Republicans are talking about fighting procedure with procedure, hinting at a Senate rule touted by the conservative Heritage Foundation that could head off the need for a nuclear option.
“McConnell understands Senate procedure better than [the Democratic minority leader] does,” says GOP consultant Matt Mackowiak.
That remains to be seen, but it may well be that a town that is bracing itself for the nuclear option won’t have to face it. This time.