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.
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.