Some Democrats are openly entertaining the option of dumping the 60-vote threshold still needed to confirm nominees to the nation’s highest court. (Getty) Liberals flirt with lowering bar on Supreme Court confirmation Some Senate Democrats say the Supreme Court filibuster needs to go, with the GOP refusing to even meet an Obama nominee.

When Senate Democrats gutted the filibuster for most nominations in 2013, they refused to touch the rules governing the Supreme Court — but some liberals are now starting to reconsider.

President Barack Obama nominated Merrick Garland for the nation's highest court on Wednesday morning, and with most Republicans still refusing to consider him for the job, some Democrats — mostly hailing from the caucus’s liberal wing — are openly entertaining the option of dumping the 60-vote threshold still needed to confirm nominees to the nation’s highest court.


Sen. Brian Schatz (D-Hawaii) calls himself an institutionalist who doesn’t “yet” support changing filibuster rules in light of the acrimonious Senate fight over replacing deceased Justice Antonin Scalia.

“But at some point, you have to ask,” Schatz said in a recent interview. “What do all these institutional prerogatives mean if the institution not only can’t do its own job, but is destroying the ability of other branches of government to do their jobs?”

Others are taking it one step further. Sen. Richard Blumenthal (D-Conn.) said he supports abolishing the filibuster for the Supreme Court altogether, a position that he says he has long held but a stance that is taking on new significance in this latest nomination battle.

Blumenthal, who has argued four cases before the Supreme Court and clerked for former Justice Harry Blackmun, argues that other federal judges have lifetime appointments and yet can be confirmed by a simple majority — and that same standard should be held for the Supreme Court.

“For more Americans, justice is dispensed by the appellate and district courts,” he said. “The Supreme Court is the most important court, and it is the source of all potential authoritative rulings, but the other appointees are also lifetime and they also matter critically. So it’s a difference in degree, not in principle.”

By no means is a rules change for Supreme Court nominees — which would fundamentally end the filibuster for all nominations and mark yet another major change to the institution of the Senate — being seriously considered in the immediate future. But both sides now openly predict that the Supreme Court filibuster may ultimately die.

Republicans are already charging that Democrats, should they win back control of the Senate in November, will be quick to further erode the filibuster. For instance, if Hillary Clinton wins the White House and a Republican minority promptly blocks her Supreme Court nominees, that would create the prime conditions where a rules fight could escalate.

“Based on their previous conduct, I couldn’t assume anything isn’t at risk, including that,” Senate Majority Whip John Cornyn (R-Texas) said of getting rid of the 60-vote threshold. “This isn’t a fight that we started nor asked for. But I think we’d look like a bunch of chumps if we were willing to play by a different set of rules than they are.”

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) went stronger with his prediction: “If they got the majority, I think they would do it.”

Even while going nuclear in November 2013, using a simple majority to change voting thresholds for nearly all executive and judicial nominations, Democrats weren’t eager to endorse such an aggressive tactic for the court that sets sweeping precedents on controversial issues such as abortion rights. One senior Senate Democratic aide that even now, the number of senators who want to lower the threshold for Supreme Court can be counted on “one hand.”

The debate over preserving the Supreme Court filibuster has largely been a side storyline in the ongoing battle over replacing Scalia, where Republicans are relentlessly sticking to their promise to not grant the eventual nominee a hearing and Democrats are throwing everything at the wall to try to wear them down.

But Sen. Lindsey Graham (R-S.C.) predicted last week during a contentious Judiciary Committee hearing over the vacancy that it was just a matter of time before the 60-vote threshold for Supreme Court nomination ultimately disappeared from the Senate.

“There are going to be some really hard-left and hard-right judges that come through this majority-only process,” Graham warned in an interview this week.

Senate Republicans have had their own flirtations with changing Senate rules, but those escalations were diffused by senators such as Graham, who was a member of the so-called Gang of 14 that guided the Senate away from the nuclear edge in 2005.

Early last year, Republican Sens. Roy Blunt of Missouri and Lamar Alexander of Tennessee floated a proposal that would get rid of the 60-vote threshold for Supreme Court nominees. However, they said they would only do it if they could get the support of 67 senators to formally amend Senate rules, and their plan went nowhere.

The senior senators also led a task force on potential rules changes with a small group of freshmen, but that proposal focused primarily on filibuster rules governing legislation. And Blunt, too, predicted that the 60-vote requirement for the Supreme Court will eventually meet its demise.

“I don’t think that that will continue to be the exception the first time the president and a Senate are the same party,” Blunt said. “I think neither party is likely to resist the opportunity to put a justice on the court that is most in agreement with their view of what the court should be.”

The bare-knuckle Supreme Court fight has activated the bases of both party even before Obama has unveiled his nominee. Conservatives have rallied around Majority Leader Mitch McConnell’s decision to halt any consideration of a Scalia replacement, and the left, both on and off the Hill, have activated a wide-scale pressure campaign against the GOP to force them to relent from their blockade.

The liberal website Daily Kos even encouraged Sen. Chuck Schumer (D-N.Y.), the presumed top Democrat after Minority Leader Harry Reid (D-Nev.) retires, to threaten to use the nuclear option on Supreme Court nominees should Democrats win the Senate in November. Schumer, in a brief interview Tuesday, said simply of rules changes: “Not even thinking about that at this point.”

Oregon Sen. Jeff Merkley, part of the newer generation of Senate Democrats who helped engineer the 2013 changes, said he doesn’t currently support lowering the 60-vote threshold for Supreme Court nominees. Instead, he prefers a so-called “talking filibuster,” where senators objecting to a nomination would have to physically come to the floor to speak — and speak — against the president’s pick.

But he also painted a scenario where a future majority party could make the major change down the road.

“If the minority were to deeply abuse our responsibilities under the Constitution for the advise-and-consent process — not holding hearings, not holding a floor debate, or just being unwilling to vote for anyone because it’s the president of a different party — then that would eventually blow it up,” he said.

Just three Senate Democrats voted against the “nuclear option” in 2013, and West Virginia Sen. Joe Manchin — the only one of the trio still in office — said of changing rules for Supreme Court nominees: “I pray to God they don’t.”

“That’s the one thing I told Harry,” Manchin said, elaborating that he told Reid: “I don’t agree with what you’re doing, but you at least ought to consider it before you do it to the Supreme Court.”

And other Senate Democrats who endorsed the 2013 rules changes are skittish about going even further.

“One of the things that makes the Senate different from the House is the existence of the filibuster, the existence of a 60-vote margin, that forces a president to nominate candidates for the Supreme Court” who are more consensus candidates, said Sen. Chris Coons (D-Del.). “I generally think that’s not just a tradition, but a structural feature of the Senate that’s worth fighting for and preserve.”