Wednesday, January 25, 2017

Another hill worth dying on

When U.S. Supreme Court justice Antonin Scalia passed away early last year, Senate Majority Leader Mitch McConnell (R-KY) stated within hours of the news that the next President would fill the sudden vacancy. McConnell held firm on that as then President Barack Obama's nominee Merrick Garland never received a hearing, a move which infuriated leftists.

Punting on Obama's SCOTUS nominee was a risk McConnell and Senate Republicans were willing to take despite it being far from a guarantee that a GOP President would be elected the following November or that their party would maintain control of the U.S. Senate. I said at the time that it was a hill worth dying on, in that it could be one issue to mobilize reluctant conservatives behind a potential Donald Trump candidacy (which, of course, came to fruition).

McConnell's gamble did indeed pay off, as Trump was elected President and the GOP, despite losing two Senate seats, maintained a majority in the upper chamber.

Earlier this week, President Trump indicated he will put forth his Supreme Court nominee next week Thursday. The rumored short list consists of strict constructionists in the motif of Scalia. Unless there are 8 Democrats willing to join all 52 Republicans to form the 60-vote threshold to end a filibuster, it's possible the Dems will block any attempts for the Senate to hold an "up or down" vote for Trump's nominee. Even though the Dem majority in 2013 went with the nuclear option (forming a rule where only a simple majority is required to end a filibuster) for lower court nominees, the Supreme Court confirmation process still requires 60 votes to end debate.

So will the GOP Senate go "nuclear" for Supreme Court nominees if the Dems balk? It would appear so.

The Senate's No. 3 Republican told reporters at a GOP retreat Wednesday the Senate will fill the Supreme Court vacancy even if Democrats threaten to mount a filibuster, and suggested the GOP may be ready to invoke another "nuclear option" if needed.

"We hope there are Democrats who are available to work with us and work constructively," Senate Republican Conference Committee Chairman John Thune, R-S.D., said, adding that there will likely be "additional opportunities" for both parties to consult with President Trump on the nominee. "We will fill that seat."

The tone struck by Sen. Thune sounds very similar to that of McConnell's on this past weekend's Fox News Sunday with Chris Wallace.

MCCONNELL: Well, let me just say, I’m confident we’ll get a Supreme Court nominees confirmed. I expect an outstanding nominee sometime soon. I think it’s noteworthy to look at how the Republican minority handled Bill Clinton the first — in his first administration. Both — both of his first two nominees, Ginsburg and Breyer, no filibuster. Obama, in his first term, to go, no filibuster. We think our nominee ought to be treated the same way. If he is not treated that way, then, under the current Senate rule, we would have to get cloture. That is, we’d have to get 60 votes. We had to do that when the Democrats objecting to Justice Alito 10 years ago, but cloture was invoked. Sorry for the long answer. I think the short answer is, the nominee will be confirmed.

WALLACE: But would you consider extending the nuclear option and saying, even for Supreme Court justices, just a simple majority?

MCCONNELL: The nominee will be confirmed.

WALLACE: One thing I’ve learned with you, Senator McConnell, is once you’ve given an answer, you’re going to stick with that.

I wholeheartedly agree that Senate Republicans should invoke the nuke option if there are not 60 votes to end a filibuster. As of today, it doesn't appear nearly as big a political risk given that Trump will remain President at least until 2020 and the Senate Democrats (including the 2 Independents who caucus with the Dems) have 25 seats up for election in 2018 (the GOP has only 9). Of those 25 states where a Democrat is up in '18, Trump prevailed in ten of them this past November. As such, it's conceivable that the GOP will increase their Senate majority and thus have an opportunity to fill multiple Supreme Court seats between now and the next Presidential election in '20.

Even if the GOP were to get wiped out in 2020, at least they can say they protected the SCOTUS for another generation.


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