There’s A Hidden Timebomb In The Senate Rules That Will Go Off If A Supreme Court Justice Retires [View all]

[Cooley Hurd]

http://thinkprogress.org/justice/2014/04/20/3428794/theres-a-hidden-timebomb-in-the-senate-rules-that-will-go-off-if-a-supreme-court-justice-retires/

As Jonathan Chait notes, only five Republican senators voted to confirm Justice Elena Kagan to the Supreme Court, and three of those senators — Judd Gregg, Richard Lugar and Olympia Snowe — are no longer in the Senate. If Republicans take the Senate this November, there is a very real possibility that no one President Obama nominates to a Supreme Court vacancy, no matter what their record or qualifications, could be confirmed to the Court.

We made a similar point in 2012, when Tea Party candidate Richard Mourdock defeated Lugar in a Republican Senate primary after he attacked Lugar for his support of Kagan and Justice Sonia Sotomayor. As we wrote then, “in light of this incident, it is unlikely that any of the few remaining Republicans who backed an Obama Supreme Court appointee will be willing to risk their careers by doing the same again.”

Indeed, under the Senate’s current rules, Republicans could block a Supreme Court appointment right now, if they chose to, even though Democrats effectively control 55 percent of the Senate. Last November, when Senate Democrats voted to invoke the so-called “nuclear opinion” and end the GOP’s ability to require a supermajority to vote to confirm most nominees, they left in place the 60 supermajority requirement for Supreme Court confirmations. As a result, unless at least five Republicans oppose a GOP filibuster of a Supreme Court nominee, the current rules allow the GOP to keep that nominee from being confirmed.

Of course, if the vacancy were to arise right now, when Democrats control a solid majority of the Senate’s seats, it would be a simple matter to invoke the “nuclear option” again — a procedure that allows the Senate’s rules to be changed by a simple majority vote. But that assumes that a majority of the Senate is willing to support such a rules change.

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