Senate Republicans’ trial balloon calling for abolishing filibusters for Supreme Court nominees is already plummeting back to earth.

Democrats are worried about a Republican Senate and president installing anti-abortion justices if the GOP takes the White House in 2017. Veteran Republicans loathe the plan, arguing it further fillets the minority party’s rights beyond current rules that eliminated the filibuster for most presidential nominees. Republicans also face the possibility of losing the Senate in 2016 and they fret about voters giving the confirmation keys to a President Hillary Clinton, who they fear would install liberal judges.


Given Republicans’ insistence that any changes to the Senate’s byzantine rules require the support of 67 senators, it’s impossible to envision the filibuster disappearing anytime soon on Supreme Court nominees.

Indeed, senators were much quicker to pan the proposal than praise it.

“I certainly would not support further limiting the rights of senators,” said moderate GOP Sen. Susan Collins of Maine.

“It’d be a serious mistake,” said Sen. Debbie Stabenow (D-Mich.). “We chose not to do that because it was the highest court in the land.”

Asked if Democrats’ opposition centered solely around abortion rights, Stabenow said her concern goes even further around a court that routinely makes big decisions on everything from health care to gay marriage to voting rights.

“Lots of worries. Lots of worries,” she said, shaking her head.

The idea of ending the filibuster on all presidential nominees is rooted in the institution of the Senate, where since 2003 the practice of requiring 60 votes on nominees became an increasingly popular tool used by the minority party to stop or slow the president’s nominees. But if the filibuster were further gutted, the prizes at stake in 2016 would increase beyond the comfort level of senators in both parties: If one party wins both the White House and the Senate, the minority would lose any sway over the Supreme Court process and could be forced to swallow ideological nominees if any vacancies arise.

That might be too much for either Democrats or Republicans to bear. Members of both parties this week argued that eliminating the filibuster on Supreme Court nominees would only boost the prospects for rigidly partisan nominees from the left or the right, depending on which party comes out the winner in next year’s elections.

“You’re going to ruin the judiciary over time,” said Sen. Lindsey Graham (R-S.C.), who wants all nominees subject to a 60-vote threshold. “I like the idea of having to reach across the aisle. ’Cause what you’re doing is you’re turning judicial appointments over to the hardest of the hard within each caucus.”

Facing staunch opposition to confirmation of several high-level judges to the D.C. Circuit Court of Appeals, Senate Democrats changed the filibuster rules in 2013 to allow unilateral confirmation of almost all presidential nominees via the “nuclear option” — a simple majority of Democrats. But Democrats left the filibuster untouched for the Supreme Court, mostly because of their worries about anti-abortion justices winning future confirmation.

Some Republicans are hoping to start fresh this year and simply end the filibuster on all nominees for good, eliminating the possibility of either party changing the rules to their liking whenever they have the majority. GOP Sens. Lamar Alexander of Tennessee and Mike Lee of Utah have developed a proposal they say does just that and their plan is, for now, moving forward.

Senate Rules Committee Chairman Roy Blunt (R-Mo.) said on Tuesday that his panel will vote later this year on the filibuster reforms suggested by Alexander and Lee and allow it to be amended by other senators on the Rules Committee. The proposal could make it through committee, though some Democrats suggested it would do so on a party-line vote given queasiness in their party over the Supreme Court provision.

Alexander privately shared his plan with Sen. Chuck Schumer of New York, the top Democrat on the Rules Committee and No. 3 in his party leadership. The two men have consistently worked as back-channel negotiators between their two bitterly divided caucuses, but Schumer was not enthused about the Tennessean’s suggested changes.

“It’s a nonstarter for most Democrats,” Schumer said. “I love Lamar, but when he first showed it to me, I said: ‘How can we do this for Supreme Court?’”

Alexander did not seem dissuaded by the bipartisan opposition to his plan.

“Nothing ventured, nothing gained,” he said with a shrug.

The argument from Blunt and Alexander is they are simply trying to finalize what had been tradition since the birth of the Senate: not using filibusters on nominations. They say they are doing nothing radical, simply codifying the “up or down” majority vote that thousands of nominees had experienced before the two caucuses’ use of obstructionist tactics accelerated over the past two decades. Filibustering a Supreme Court nominee is exceedingly rare, though Obama was among those who unsuccessfully tried to do so against Justice Samuel Alito.

“Clarence Thomas was a very controversial nominee — 52-48. So the real tradition of the Senate is that these confirmations were done by a majority,” Blunt said. “You could argue there’s a reason [not to do it]. But the tradition of the Senate isn’t one of them.”

Complicating things further, senators’ positions don’t neatly divide by political party. Liberal Sen. Ben Cardin of Maryland and conservative Sen. Ted Cruz of Texas both believe the final abolition of the filibuster on nominations has merit. The Democrats who led the charge for the 2013 filibuster changes can’t get on the same page: Sen. Tom Udall of New Mexico said he’s open to hearing more from Alexander while Sen. Jeff Merkley of Oregon said he’s firmly opposed.

And within the Republican caucus there are several different camps: Some want the Senate to restore the 60-vote filibuster threshold for all nominees — some would keep things as they are now with the Supreme Court exception and still others want to follow Alexander, Blunt and Lee, getting rid of the filibuster for all nominations.

“We just don’t have a consensus in the caucus right now,” said Sen. John Thune (R-S.D.), a member of leadership.

The GOP is reluctant to change the rules by a simple majority — the “nuclear option” used by Democrats in 2013 — and no proposal enjoys broad support, so inertia may be the best bet. If nothing is done, the Senate will continue to require a simple majority for all nominees except to the Supreme Court, pointing to easy confirmations over the next few weeks for Attorney General nominee Loretta Lynch and Defense Secretary nominee Ashton Carter.

Meanwhile, Alexander, McCain and everyone in between will continue making their case about which is more important: the minority’s sway over the Senate or the Senate’s tradition of deference to presidential nominees.

“The last advocate I talked to, I think they’re correct,” said Sen. Jeff Sessions (R-Ala.). “And then I talk to another one and I think they’re correct.”

Seung Min Kim contributed to this report.

This article tagged under: Lamar Alexander

Senate

Filibuster