Reporter's Notebook: The Senate's path to confirming the next Supreme Court justice

close

Video

Political war to erupt amid search for Kennedy's replacement

Conservative groups are confident President Trump will pick a Supreme Court replacement they are happy with. John Roberts has the details for 'Special Report.'

Senate Democrats likely will rue the day retired Senate Majority Leader Harry Reid, D-Nev., executed the “nuclear option” in November 2013.

Reid was frustrated that Senate Republicans were slow-walking many of President Obama’s nominees. So that November, Reid altered the Senate “precedent” (not a rules change) and lowered the bar to break a filibuster for most cabinet, agency and judicial nominees. The bar had been 60 yeas to break a filibuster. Reid wanted to drop it to a simple majority (51). The Senate does much of its work based on long-established precedents. Changing the 44 standing rules of the Senate requires a procedural vote of 67 yeas. A very high bar. Thus, it’s easier to alter the precedent, rather than change the rules.

So, Reid, through some procedural chicanery on the floor, altered the precedent on filibusters … for everything but Supreme Court nominees.

Hold that thought…

Supreme Court Justice Antonin Scalia died in February 2016. President Obama was still in the Oval Office. Senate Majority Leader Mitch McConnell, R-Ky., immediately declared the Senate wouldn’t consider the president’s nominee … no matter who they may be. This would wait until after the 2016 presidential election.

Kennedy retirement grants Trump second high court pick

The 'Special Report' All-Star panel on the impact of Justice Kennedy's retirement.

President Obama nominated Merrick Garland to the high court. And the nomination rotted on the vine, never receiving a hearing.

Then President Trump defeated Hillary Clinton. And he nominated Neil Gorsuch to succeed Scalia.

In April, 2017, McConnell faced a problem. He couldn’t break a Democratic filibuster on the nomination of current Supreme Court Justice Neil Gorsuch. Supreme Court nominations still required 60 yeas. Reid had opened Pandora’s Box.

Any kid on the school yard will tell you that paybacks are hell. And so following in Reid’s footsteps, McConnell executed a second version of the nuclear option, changing the Senate precedent, and lowering the bar to break a filibuster on a Supreme Court nominee from 60 votes to 51 votes.

There has never been a successful filibuster of a Supreme Court nominee. The Senate has rejected 12 nominees before. The last was Robert Bork in 1987. However, the Senate successfully filibustered the nomination of Associate Justice Abe Fortas to become Chief Justice in 1968. However, Fortas was already on the high court.

Video

The precedent set with the Gorsuch nomination will hold forth for all subsequent Supreme Court nominations.

McConnell’s maneuver bore fruit for the right Tuesday when the Supreme Court ruled 5-4 on the travel ban case. It’s likely a Justice Garland would have seen the case much differently than Justice Gorsuch.

I asked McConnell Tuesday if he felt vindicated in his tactics. “I thought Neil Gorsuch was an outstanding appointment. I’m happy to see a Supreme Court right of center, as it was before Justice Scalia passed away,” McConnell said.

Democrats now are arguing that Republicans should adhere to their policy of waiting until after an election to consider the next nominee. Granted, the circumstances are a little different and the comparisons don’t quite align. But consider how Republicans deployed the “judges” issue as a weapon to energize their base over the years. Reporters queried Schumer about engaging Democratic voters in the midterms. But Schumer punted.

“Our pitch to voters is on health care. We cannot afford to have people’s health-care benefits reduced, their costs going up, their costs reduced on the proposals on the tax bill. We cannot have proposals that jeopardize Medicare and Medicaid, and put our grandchildren into tremendous debt. We believe on the merits of the issues, the public is strongly with us and November will show that,” said Schumer.

Now Democrats face a potential 6-3 court rather than even a 5-4 court ... in favor of the left. Consider the anti-Trump energy among progressives and liberals — revealed in the primary election win Tuesday night of Alexandria Ocasio-Cortez over House Democratic Caucus Chairman Joe Crowley, D-N.Y. Democrats have an opportunity to engage their base in the midterms over the Supreme Court. But consider that Republicans have been doing this for a long time.

Here’s another factor to consider:

The Senate is currently 51-49 in favor of Republicans. But, in reality, the Senate is 50-49. Sen. John McCain, R-Ariz., hasn’t voted since last December. All it would take is to have one defection or absence on the Republican side to have a tie vote to break a filibuster or to confirm the Supreme Court nominee. Two defections or absences … swings the process to the Democrats.

Video

There is a balance beam right now in the Senate. And when it comes to the next Supreme Court nomination, Republicans are tottering in hopes of not falling off.

As for timing…

Keep in mind that McConnell intends to keep the Senate here throughout August. We’ll see if that comes to pass. But with an expected “fall” vote, it’s possible the Senate hold hearings on the nominee in August.