If Hillary wins, and Dems retake the Senate, expect Dems to use the Nuclear Option for a Supreme Court nominee

Harry Reid was the first to use the Nuclear Option, on November 21, 2013, when under his direction the bare majority of Democrats in the Senate removed the ability to filibuster for judicial nominees below the U.S. Supreme Court level.

That allowed Obama to stuff the federal courts full of nominees and to alter the balance on some of the crucial federal courts of appeal. By the time the Republicans retook the Senate, it the horses had left the barn.

That use of the Nuclear Option was predicted to be the first step, with the inevitability that if Democrats ever retook the Senate with a Democratic President in place, the Nuclear Option would be used for U.S. Supreme Court vacancies as well. Reid didn’t need to go that far in 2013, because there were no vacancies to be filled on the U.S. Supreme Court at the time.

Now there is a vacancy with the death of Antonin Scalia.

If there were any doubt that Reid took the move with the Supreme Court in mind, he just removed that doubt in an interview with Talking Points Memo, Harry Reid’s Parting Shot: Dems Will Nuke The Filibuster For SCOTUS:

Outgoing Senate Minority Leader Harry Reid (D-NV) said he is confident that he has laid the groundwork for Democrats to nuke the filibuster for Supreme Court nominees if they win back the Senate in November. Envisioning Hillary Clinton in the White House and Democrats controlling the Senate, Reid warned that if a Senate Republican minority block her Supreme Court nominee, he is confident the party won’t hesitate to change the filibuster rules again. Such a move would be an extension of what Reid did in 2013 when he was still majority leader, eliminating filibusters (with a simple majority vote) on the President’s nominees. There was only one exception: the Supreme Court. As it stands now, Democrats still need 60 votes to move forward with a Supreme Court nominee. Reid said, however, that could change. “I really do believe that I have set the Senate so when I leave, we’re going to be able to get judges done with a majority. It takes only a simple majority anymore. And, it’s clear to me that if the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I’ve told ’em how and I’ve done it, not just talking about it. I did it in changing the rules of the Senate. It’ll have to be done again,” Reid told TPM in a wide-ranging interview about his time in the Senate and his legacy.

If Democrats retake the Senate, majority leader Schumer will have to decide whether to go nuclear. Harry Reid gave Schumer the weapon and the justification.

Of course, that works in both directions, something I pointed out after Reid nuked the judicial filibuster:

Decades of negative and destructive policies can be reversed with a bare majority. Obamacare can be repealed with a bare majority. True Conservative Judges will not be banished due to a filibuster threat. Yes, it’s true that the absence of a filibuster could accelerate the destructive policies. That fear is justified, particularly as to the judiciary. But face it, we were headed there anyway unless drastic action was taken. That drastic action took place yesterday. By Democrats. Now at least we have a chance to achieve previously unimaginable progress in a single presidential term if we also have bare majorities in Congress and a President with the willpower. It will take only one such term. The ratchet has been broken. And opportunity created, even if dependent upon future electoral success. It’s now up to us to seize the opportunity.

Of course, for Republicans to use the Nuclear Option as to the Supreme Court would take three things: (1) Trump winning the presidency, (2) Republicans holding the Senate, and (3) Republican Senators being willing to play smash mouth as aggressively as Harry Reid and Democrats do.

No. 1 seems increasingly unlikely; No. 2 is a toss-up; No. 3 probably will not happen, as a Republican Senate would probably wimp out.



