End filibusters for Supreme Court nominees? GOP teeters toward overconfidence.

Reported plan to end filibusters for Supreme Court nominees reflects confidence that Republicans will still be the majority party in the Senate after 2016. That confidence may be just a bit optimistic.

J. Scott Applewhite/AP
Senate majority leader Mitch McConnell (R) of Kentucky speaks to reporters on Jan. 20. Winners by far in last fall’s elections, Republicans are now reportedly considering changing Senate rules to end the rights of the minority to filibuster Supreme Court nominations.

Politico is reporting that Senate Republicans are considering taking moves made by the Democrats when they controlled the Senate even further and abolishing the filibuster for Supreme Court nominees:

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.

From a tactical point of view, it’s unclear why either party would want to change the rule at this point in time. Republicans really have no need for the filibuster, since they control the majority in the Senate, and on the Senate Judiciary Committee, of course, and thus are able to have a significant voice in whatever nominations President Obama makes to the nation’s highest court without having to resort to the filibuster. Democrats, meanwhile, are highly unlikely to have any desire to want to filibuster any candidate that President Obama would put forward. Similarly, if the GOP manages to hold on to the Senate in 2016 but the Democrats win the White House, then the filibuster will be largely irrelevant in terms of how a potential Supreme Court nomination is treated. If the GOP loses the Senate, though, then they would likely come to regret getting rid of the filibuster for high court nominations. The point at which getting rid of the filibuster could become an issue for Republicans would be if the GOP wins the White House and Democrats were to attempt to filibuster Republican Supreme Court nominees. Even at that point, though, Republicans would need to keep in mind that they would one day again be in the minority and ask themselves if they really want to deprive themselves of this procedural tool. Democrats underwent a similar debate when they made the rules changes that eliminated the filibuster for non-judicial appointees and judicial appointees below the Supreme Court level and made the choice to go forward, of course, but we have yet to see if they will come to regret that move should the GOP retake the White House in the future.

As Jazz Shaw notes, then, even suggesting this idea evidences no small degree of confidence on the part of Republicans such as Blunt regarding the GOP’s prospects in the Senate in 2016, but it strikes me that this confidence may be just a bit optimistic. Before the election, I noted that Republicans face a far different Senate field in 2016 than they did in 2014, due in no small part to the fact that they will be required to defend seats that they won in 2010 that may be harder to defend in a presidential election year. Among the most vulnerable Republicans next year will be Mark Kirk in Illinois, Kelly Ayotte in New Hampshire, Pat Toomey in Pennsylvania, and Ron Johnson in Wisconsin. Also potentially vulnerable, or at least likely to face strong opponents, are Rob Portman in Ohio and Marco Rubio in Florida, who may or may not run for reelection depending upon his presidential intentions. Democrats would need a net pickup of five seats to retake the Senate in 2016 and while this seems unlikely as we sit here today, it’s not beyond the realm of possibility, especially if the Democratic presidential nominee proves to have strong coattails in the states noted above to pull Democratic Senate candidates to victory. This is one reason why Republicans were fortunate that their victory in 2014 was so all-encompassing; a 51-49 or 52-48 majority would have been far more vulnerable than the current GOP majority of 54-46 is likely to be. Nonetheless, it seems to me to that the GOP is being awfully optimistic if it’s already planning for a majority that lasts through 2019, at least.

Doug Mataconis appears on the Outside the Beltway blog at http://www.outsidethebeltway.com/.

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