January 4th, 2017

Democrats and SCOTUS nominees: then and now

When President Obama nominated Merrick Garland as SCOTUS Justice Scalia’s replacement last March, it was eight months from the 2016 election. Republicans controlled the Senate, and they decided to punt and wait for the next president.

This was somewhat of a gamble. If Clinton had been the victor (and most people in DC expected that to happen) and in particular if the Senate fell into Democratic hands (and there was a good chance of that, as well), the GOP would have faced the possibility of somehow trying to approve of Garland after the election but before the transfer of power if they could, or the probability of a far more liberal/leftist nominee who would be approved by the next Congress.

The Democrats protested, of course. But the GOP—to the surprise of many people, especially those on the right—held firm.

The Democrats had invoked the nuclear option for most federal appointees (but not the Supreme Court) back in 2013, and for a very simple reason: it made sense to them because they still held the majority in the Senate and Obama was still president. If both hadn’t been true in 2013, there would have been no practical reason for Democrats to vote for the nuclear option.

But by the time Justice Scalia died unexpectedly in 2016 and Obama was given the opportunity of choosing his successor, one of those conditions no longer applied: the Senate had turned to the Republicans. Therefore there was absolutely no reason (and no way, had there been a reason) for the minority Democrats to have invoked the nuclear option for the nomination of Scalia’s SCOTUS successor.

Now they have a reason to be glad they kept the filibuster intact for SCOTUS nominees. They most assuredly do. Because now they’re still in the minority in the Senate, and Trump as president will be the one doing the nominating. And now, of course, Democrats think that blocking his nominees would be a great great thing, and they think that the GOP invoking the nuclear option for SCOTUS nominees and thereby blocking their Democrat block would be a terrible terrible thing.

Here’s Chuck Schumer:

Sen. Charles Schumer (D-N.Y.) says he regrets the decision by Democrats in 2013 to trigger the “nuclear option” for most presidential nominations.

The change to the Senate rules lowered the threshold for confirming Cabinet nominees to a simple majority vote — something that will now help President-elect Donald Trump push through his nominees.

“I argued against it at the time. I said both for Supreme Court and in Cabinet should be 60 because on such important positions there should be some degree of bipartisanship,” Schumer told CNN.

“I won on Supreme Court, lost on Cabinet. But it’s what we have to live with now.”

At least Schumer is consistent in the sense that apparently he did oppose Reid’s move in triggering the nuclear option back in 2013, at least for a while. Now Schumer is left holding the Reid bag. And he should be afraid that the GOP will extend that nuclear option to SCOTUS nominations, as well, if the Democrats are too obstructionist about the Trump SCOTUS picks.

And Schumer says the Democrats plan to be obstructionist:

“We are not going to settle on a Supreme Court nominee. If they don’t appoint someone who’s really good, we’re gonna oppose him tooth and nail,” Schumer told MSNBC’s Rachel Maddow. “They won’t have 60 votes to put in an out-of-the-mainstream nominee and then they’ll have to make a choice: change the rules. It’s gonna be very hard for them to change the rules because there are a handful of Republicans who believe in the institution of the Senate.”

“We are not going to make it easy for them to pick a Supreme Court justice,” he added.

That’s a really interesting quote: “there are a handful of Republicans who believe in the institution of the Senate.”

All it would take is “a handful,” because the GOP lead in the Senate is slim (52/48). The Democratic lead back in 2013 when Reid invoked the nuclear option, violating the spirit of “the institution of the Senate,” was somewhat larger but not at all enormous: 53/45, with 2 Independents who caucused with the Democrats for a grand total of 55/45. The vote on that occasion was 52/48 in favor of the nuclear option. A “handful” of Democrats—Mark Pryor of Arkansas, Joe Manchin of West Virginia and Carl Levin of Michigan—voted against it (and by the way, I doubt they would have done so had they not known their votes wouldn’t matter because the Democrats had enough votes to pass it without them). Chuck Schumer was not among those “no” votes.

Here’s the NY Times reporting in 2013 on that vote. The story contains ironies, and a rather impressive amount of prescience on the part of leading Republicans:

Furious Republicans accused Democrats of a power grab, warning them that they would deeply regret their action if they lost control of the Senate next year and the White House in years to come. Invoking the Founding Fathers and the meaning of the Constitution, Republicans said Democrats were trampling the minority rights the framers intended to protect…

“You think this is in the best interest of the United States Senate and the American people?” asked the Republican leader, Senator Mitch McConnell, sounding incredulous.

“I say to my friends on the other side of the aisle, you’ll regret this. And you may regret it a lot sooner than you think,” he added.

Mr. Obama applauded the Senate’s move. “Today’s pattern of obstruction, it just isn’t normal,” he told reporters at the White House. “It’s not what our founders envisioned. A deliberate and determined effort to obstruct everything, no matter what the merits, just to refight the results of an election is not normal, and for the sake of future generations we can’t let it become normal.”

It’s only fitting and proper if Democrats do it, I suppose.

12 Responses to “Democrats and SCOTUS nominees: then and now”

  1. Oldflyer Says:

    One of the downsides of the election cycle is that Schumer will appear on TV constantly. Not that he is worse than Reid; but, I think that TV Mavens who might hesitate now and then to give the disgusting Reid a microphone, will rush to Schumer.

  2. lynndh Says:

    Hoist them by their on Petard!

  3. blert Says:

    Pence is going to be Senate bound. Heh.

  4. Geoffrey Britain Says:

    If, as a result of intransigent obstructionism by Senate democrats, McConnell does go to the nuclear option for SCOTUS appointments… the Republican response to the predictable democrat ‘outrage’ should be to exactly quote Obama’s words above, right back at them.

    Pray that Trump nominates another Scalia.

  5. parker Says:

    It will not happen, but I wish Ted Cruz was nominated and approved. We would have a constitutional justice for 30 years.


    Using the ‘nuclear option’ for SCOTUS appointments is a very dangerous idea. One day the dems will have a senate majority (not as soon as 2018) and someone similar to Bill Ayers could end up on the court. BTW, 2018 may see major gains in the gop senate majority.. Dem senators are up for reelection in ND, MO, MT, IN, and WV which djt won by large margins. Manchin in WV may decide to switch to the gop before then.

    Then there a dem senators up for reelection in PA, WI, and MI. These are less likely to land in the gop’s lap, but djt also won those states. As we have seen strange things can happen.

  6. neo-neocon Says:


    Problem is, I have little doubt that the Democrats will not hesitate to invoke the nuclear option for SCOTUS appointments if they see the need. They don’t require a GOP precedent to do so. They will do it, GOP precedent or no.

    That’s why the Democrats shouldn’t have used the nuclear option in 2013. They opened the door. The toothpaste cannot be put back in the tube.

  7. T Says:

    Mr. Obama applauded the Senate’s move. “Today’s pattern of obstruction, it just isn’t normal,” he told reporters at the White House. “It’s not what our founders envisioned. A deliberate and determined effort to obstruct everything . . . . [NY Times]

    This illustrates just how much Obama, the constitutional scholar, knows about the document he claims to specialize in. It seems that many serious constitutionalists believe that precisely the opposite is true; that in setting up three competing arms of govt (Legislative, executive, and judicial) that the intent was to stymie government so that only the most important (i.e., agreed upon) government took effect and that the disagreement between the varying branches would keep government in check.

    In other words, if they are correct, gridlock should be the governmental norm and cooperation should be the exception.

    As for me, I have noticed that everytime government agencies agree among themselves, I find another hand in my pocket.

  8. Frog Says:

    What is at issue here is Senate rules not specified nor implied by the Constitution, even by the fabled but never seen ‘penumbra’. These rules have been modified from time to time. There is nothing holy about needing 60 votes to approve a SCOTUS nominee. The rule can be changed by the majority. That’s all it takes (see Reid, whose Democratic majority did away with said option by simple majority vote).
    Interesting, from Wiki: “In most proposed variations of the nuclear option, the presiding officer [Pence, 2017-21] would rule that a simple majority vote is sufficient to end debate. If the ruling is challenged, a majority would be required to overturn it. If the ruling is upheld, it becomes a precedent. This would end what had effectively become a 60-vote requirement for confirmation of an executive or judicial nominee, or the passage of legislation.”
    Ahh, precedents!
    On balance, in due recognition of pros and cons, I favor doing away with supermajorities altogether. It is not (just) about hoisting Dems on their own petards.

  9. parker Says:


    I do not doubt you are correct about democrats using the nuclear option for SCOTUS appointments given the opportunity. I just think it should not be made easy for them by setting the precedence now. There is an old saying that there is so much shit in ____ it is easy to step in some. That applies doubly in the US senate.

    Term limits, repeal the 16th and 17th, except in extreme circumstances no use of military forces without a congressional declaration of war, a balanced budget amendment, all laws and regulations from DC must conform to the 9th and 10th….. an old farm boy can make wishes for his grandchildren. 😉

  10. parker Says:


    You are correct. The Senate and the House make their own rules for how they conduct business. Call me old fashion, and I am, the US Senate was originally meant to be the body that represented the states and a check on the whims of the popular majority at any given time. We need to get back, get back to where we once belonged.

  11. Matt_SE Says:

    Given everything Democrats have done after the election (and plenty before), there’s no doubt in my mind that they would invoke the nuclear option at the first chance.

    The GOP should just invoke it and get it over with.

  12. Yancey Ward Says:


    It doesn’t matter- Democrats made it abundantly clear that they would go nuclear on SCOTUS nominees if Clinton had won the election and the Democrats won the Senate. At this point, the Republicans holding to the filibuster on principle is pointless since the principle will be violated by the opposition at the first convenient opportunity.

    I remember this exact argument for principle being made by the Republicans in the mid-2000s when the Democrats filibustered numerous Bush appointees to the various appeals court- that they should uphold the principle because Democrats would use it to their benefit when they regained the majority. Well, guess what- Democrats did it anyway and were laughing their asses off while doing so.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.

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