The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Will Senate Democrats filibuster Trump's SCOTUS nominee?
The Washington Times reports that Sen. Charles Schumer (D-N.Y.) is already hinting at a possible filibuster of President-elect Donald Trump's first Supreme Court pick:
Senate Democrats' new leader claimed the right Wednesday to filibuster Donald Trump's Supreme Court nominees, making clear Democrats won't give the president-elect much of a honeymoon on the most significant of his upcoming appointments.
Sen. Charles E. Schumer, New York Democrat, said nominations to the high court should get support from both parties, and said the filibuster is a way to enforce that on a president. He pointedly noted that when his party changed filibuster rules three years ago, they left intact the ability to filibuster at the Supreme Court level.
"I'll underline that we did not change the rules for Supreme Court because we thought on something as important as this, there should be some degree of bipartisan agreement," Mr. Schumer said.
Interestingly enough, this was not the tune Senate Democrats were singing before the election. As I noted here, outgoing Senate Majority Leader Harry Reid advocated nuking the filibuster if Senate Republicans sought to use it against a Clinton nominee.
Reid was not alone. Here's Clinton's running mate, Sen. Tim Kaine (as reported in the Hill):
"If these guys think guys think they are 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," he told The Huffington Post.
The historic move would let Supreme Court nominees bypass a current 60-vote procedural requirement and be approved by a simple majority.
Pressed as to he is saying Democrats will carry out a threat from outgoing Minority Leader Harry Reid (D-Nev.) to use the procedural "nuclear option," Kaine added, "I am predicting that if the Republicans continue to stonewall, then I think that will happen."
Interestingly enough, Schumer himself refused to take the nuclear option off the table when asked prior to the election. From the same Hill report:
Any push to change the Senate rules would by led by Sen. Charles Schumer (N.Y.), who is expected to replace Reid as the leader of Senate Democrats and could become majority leader if his party wins control of the chamber on Election Day.
Asked about the nuclear option earlier this month, Schumer demurred, telling CNBC's John Harwood, "I hope we won't get to that. And I'll leave it at that."
