As the Senate moves toward getting rid of the ability of 41 senators to block Supreme Court nominees, moderates could see their profiles rise in any post “nuclear option” reality with a renewed emphasis on party unity.
Conventional wisdom is that presidents would be able to pick more stridently partisan nominees for the high court if the risk of a super majority filibuster is eliminated. But such a procedural change would also put a bigger target on moderate members of the majority.
Majority Leader Mitch McConnell, R-Ky., has said he has the votes to move ahead with the process of changing the chamber’s precedents by allowing a simple majority to break the Democratic filibuster of Judge Neil Gorsuch to fill a vacant Supreme Court seat.
The result might be something like what happened this year with the efforts to repeal and replace the 2010 health care law, according to filibuster expert Sarah Binder of George Washington University and the Brookings Institution. When the chambers consider legislation where a simple majority is required, such as the budget reconciliation process, all the focus is on various factions of GOP lawmakers.
“That 60 vote threshold takes the spotlight off of the majority, as we’ve seen with Gorsuch. Moving to simple majority cloture would make every Republican vote pivotal to confirmation,” Binder said. “There’s no minority party to blame for blocking a nominee.”
Sen. Susan Collins, a Maine Republican known for moderate stances particularly on social policy, said she was well aware that the “nuclear option” vote will change the calculation going forward.
“One of my concerns is it makes it more likely that presidents will submit more ideological choices. And I don’t think that’s good for the court,” Collins said. “But unfortunately the Democrats put us in this position by making it clear that they will block an imminently well-qualified individual.”
Should President Donald Trump get a second Supreme Court nomination with the same 52 seats in Republican hands, Collins and her colleagues would be sure to face more outside lobbying and advertising.
End Citizens United, a group opposed to Gorsuch and dedicated to trying to overturn the Supreme Court Citizens United decision that deregulated most campaign spending, has already worked against potentially vulnerable Republicans like Sen. Dean Heller of Nevada, who is up for re-election in 2018, but that would only ramp up with an effective simple majority threshold.
“We will evaluate future nominees based on their record on money in politics and if, like Judge Gorsuch, they are bad on the issue we’ll oppose them. That means pushing all senators — targeting Republicans as well as Democrats to ensure they don’t get to 50 votes,” said End Citizens United spokesman Adam Bozzi. “If Mitch McConnell takes the unprecedented step of destroying the Senate’s filibuster, there will be an extraordinary amount of pressure on Republicans like Collins, Murkowski, Heller and others to do the right thing.”
Democratic Sen. Christopher S. Murphy said that in his view the Gorsuch example makes the case that more moderate Republicans would be unlikely to rebel in the future.
“I think this is an extreme judge. Just because Gorsuch has a nice disposition doesn’t mean his judicial philosophy isn’t extreme,” the Connecticut Democrat said. “So I think you’re watching — you’re getting the answer to your question right now.”
Binder made that point, noting that Gorsuch is poised for confirmation with a very narrow Republican majority.
“If it’s a Harriet Miers nominee, there could be safety in numbers to derail the nominee long before a vote. If it’s an extremely conservative, pro-life nominee, well, we’ve got that in Judge Gorsuch, and Collins and [Alaska Sen. Lisa Murkowski] seem poised to vote to confirm him,” Binder said.
The nomination of Miers to the high court by President George W. Bush was withdrawn before she could face what was increasingly seen as a likely defeat by a Senate controlled by Republicans.
Conservative and liberal groups for and against nominees will be putting particular pressure on the edges of the majority particularly if a seat opens up when the future of decisions like the landmark Roe v. Wade abortion case appear to be in the balance.
“I think you’ll have much more extreme nominees now. I’m not sure you’ll ever get a moderate voice on the courts. As little as the pressure to find a moderate nominee is, it’s completely gone,” Murphy said. “Republican presidents can pick very conservative nominees and Democratic presidents can pick very progressive nominees.”
Senate Minority Whip Richard J. Durbin, a senior member of the Judiciary Committee, suggested the only real consultation with the opposite party would take place when there’s a division of power.
“It depends on the president and the makeup of Congress. When the president is in the majority in the Senate, it gives them a pretty strong [incentive] to push through a nominee,” Durbin said.
Collins said it would hard to make predictions about future choices for the highest court by Trump or any other future president with a majority in the Senate.
“For my part, what I would try to do is to exercise the advice and consent provision of the Constitution by giving advice to the White House on which nominees I believe would serve our country well,” Collins said. “And I give Vice President [Mike Pence] a great deal of credit for reaching out to members like me in the selection process that led to Neil Gorsuch.”
Sen. Roger Wicker noted that outside spending and pressure on the majority is not new, even when the idea of filibustering a Supreme Court nomination was not really on the table.
“I think it will be focused where the whip count says votes are gettable, you know there was a lot of outside advertising on Bork,” the Mississippi Republican said of the failed nomination of Robert Bork in 1987. “So there’ll still be that, it’s just that we won’t have the threat of a partisan filibuster.”
Bridget Bowman contributed to this report.