Republicans are citing the words of Sen. Tim Kaine when he was running for vice president in their arguments to change Senate precedent on advancing Supreme Court justices, but the Virginia Democrat disputes the comparison.
Kaine gave a campaign trail interview that signaled a Democratic majority might support effectively changing the rules to make sure a Democratic Supreme Court nominee — such as Merrick Garland, who was nominated by President Barack Obama — could overcome a GOP blockade.
But a spokesperson for Kaine said Tuesday that the situation with President Donald Trump’s nomination of Judge Neil Gorsuch was a different matter, and that the bar should remain high for Supreme Court nominees.
“Senator Kaine’s comment last fall was referring to what might happen if Republicans continued to stonewall the filling of a Supreme Court vacancy without giving any nominee due consideration, which Republicans denied Judge Garland for nearly a year,” the spokesperson told CQ Roll Call. “That hasn’t been the case with Judge Gorsuch — he’s been granted meetings, hearings, a committee vote, and he will soon receive a vote from the full Senate.”
Kaine has announced he is not only opposed to Gorsuch’s nomination, but will vote to sustain a filibuster of the nomination.
“We will change the Senate rules to uphold the law, [so] that the court will be nine members,” Kaine said last October in Ohio.
“I was in the Senate when the Republicans’ stonewalling around appointments caused the Senate Democratic majority to switch the vote threshold on appointments from 60 to 51. And we did it on everything but a Supreme Court justice,” Kaine said at the time, referring to district and appeals court judges, as well as executive nominees. “If these guys think they’re going to stonewall the filling of that vacancy or other vacancies, then a Democratic Senate majority will say, ‘We’re not going to let you thwart the law.’”
Arkansas Republican Sen. Tom Cotton cited Kaine’s interview on the Senate floor Tuesday afternoon. Cotton said he would not be the least bit dismayed by the anticipated procedural maneuvering Thursday.
“The radical Democrats brought this all on themselves, and on the Senate,” Cotton said. “The Senate is restored to a sensible, centuries old tradition.”
Democrats like Kaine contend that on this occasion, Trump should try a replacement nominee, and Kaine’s spokesperson said Tuesday that the senator believes that if Garland had failed to achieve the 60-votes needed to invoke cloture, he would have recommended replacing Garland.
“If the Senate had held a vote on Judge Garland’s nomination and Republicans had voted Garland down, Senator Kaine would have encouraged the President to put forward a new nominee without changing the rules. By the same measure, if Judge Gorsuch cannot draw enough bipartisan support to meet the 60-vote threshold for cloture, President Trump should select a new nominee,” the spokesperson said.
With announced opposition to limiting debate by independent Sen. Angus King of Maine, all 100 senators have now taken positions on the procedural vote, with Gorsuch appearing to fall four votes short of that test under the current interpretation of the rules.