After Republicans blocked a string of President Obama’s judicial and executive nominees, frustrated Senate Democrats in 2013 used their majority to change long-standing filibuster rules and allow confirmations with a simple majority.

Now Republicans are considering the same “nuclear option” to confirm President Trump’s pick for the Supreme Court if Democrats mount a filibuster, as they appear poised to do.

So while Democrats sound alarms over Trump’s high court nomination and threaten to block it, their ability to actually stop him will be limited, thanks in part to their past willingness to change the filibuster rule when they held power.

Trump plans to announce Tuesday evening his choice for the seat made vacant last year by the death of conservative icon Justice Antonin Scalia.


Senate filibusters of Supreme Court nominees are rare, largely because the decision had been seen as too important to be bogged down in partisanship.

When President Johnson tried to elevate Justice Abe Fortas to the position of chief justice, senators filibustered in part over an ethics scandal that eventually forced Fortas to resign. In 2006, Democrats, including then-Sen. Barack Obama, tried to filibuster Samuel A. Alito Jr., but the effort fizzled and Alito was confirmed.

Trump has encouraged Republican senators to scrap the filibuster and quickly confirm his choice. “We have obstructionists,” Trump told Fox’s Sean Hannity last week. Asked whether he wants GOP leaders to change the rules for the high court, he said, “I do.”

Without a filibuster, Republicans have enough votes to confirm Trump’s pick, assuming the party is unified. Republicans hold a 52-48 majority.


But if a filibuster is allowed, they’d need Democrats to help reach the 60-vote threshold needed to defeat the tactic.

And Democrats are in no mood to cooperate with Trump. Many remain incensed that Republicans refused to consider President Obama’s choice of Judge Merrick Garland after Scalia’s death, leaving the court with only eight justices for nearly a year.

“This was a stolen seat; it’s not Trump’s to fill,” said one Senate Democratic aide granted anonymity to discuss the situation.

Moreover, as daily street protests unfold across the United States, pressure is mounting on Democrats in Congress to stand up as Trump unveils a string of executive orders, like the recent ban on refugees and visitors from seven majority-Muslim countries.


Many from the Democrats’ progressive wing want the party to harness the growing liberal anger over Trump’s agenda into a dragged-out confirmation battle over his Supreme Court pick.

On Monday, Democratic Sen. Jeff Merkley of Oregon promised a filibuster fight over the nominee.

“Just voting against Trump’s policies and nominees is not enough,” wrote Anna Galland and Ilya Sheyman, executive directors of MoveOn.org, in a post on Medium. “Senate Democrats must use every procedural tool available to them to shut down the Senate.”

Republicans have not explicitly said they would end the use of a filibuster on a high court nominee, if needed. But they have clearly left it on the table as an option.


Senate Majority Leader Mitch McConnell, as an institutionalist, was loath to see Democrats abandon the precedent in 2013 on judicial nominees and executive appointments. But as a keen political operative, he is also unwilling to clip his own options.

Pressed on the issue on Fox News recently, McConnell would say only, “The nominee will be confirmed.”

“It’s way too early for me to tell you or anybody else what we might do,” McConnell added Sunday on ABC’s “This Week.” “I think how this is handled depends on our Democratic friends.”

But other Republicans have made it clear they are ready to pull out all the stops to end the filibuster and allow a simple majority to confirm the court nominee.


“We should do whatever it takes to get him confirmed,” Sen. Ted Cruz (R-Texas) told Hannity last week.

If Democrats mount a filibuster, then Republicans would probably use the same process former Senate Majority Leader Harry Reid (D-Nev.) employed in 2013.

Until then, it took 60 votes to change Senate rules. But Democrats overturned that precedent, voting that rules could be changed with a simple majority vote.

Now Republicans could do the same thing. A senator could ask the presiding officer, as a point of inquiry, how many votes are needed for the court nominee. When the answer comes back that it takes 60 votes, they could appeal the ruling, clearing the way for a simple majority confirmation.


Not all Republicans are on board.

Republican Sen. Mike Lee of Utah is among those floating another option with the Heritage Foundation — the so-called two-speech rule — that would essentially run out the clock on the filibuster by limiting how many speeches each senator could deliver. Once all time is exhausted in a weeks-long process, the nominee could be confirmed by a simple majority vote.

“We’ll look at every option when we get to it,” Sen. Roy Blunt (R-Mo.) said.

Democrats are also divided between those prepared to filibuster and more traditional-minded senators who believe the president should be allowed his choice if the nominee is qualified.


Democrats may have already won one early battle. Trump’s initial front-runner was Judge William H. Pryor Jr. of Alabama, who serves on the U.S. 11th Circuit Court of Appeals. But Democrats made clear that they would fight against Pryor, who had called the landmark abortion ruling in Roe vs. Wade an “abomination.”

More recently, Trump has been leaning toward two less-divisive candidates, Judge Neil M. Gorsuch of the U.S. 10th Circuit Court of Appeals in Denver and Judge Thomas M. Hardiman of the U.S. 3rd Circuit Court of Appeals in Philadelphia. Both men won Senate confirmation without opposing votes.

But Democrats argue that those previously confirmed by the Senate will require new scrutiny, especially because they now have fresh records from the decisions they have made from the bench. They are not guaranteed the same outcome.

lisa.mascaro@latimes.com


@LisaMascaro

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