Filibuster Fight Makes for Strange Bedfellows

Republicans who opposed Reid’s nuclear option now want to lower another bar on nominees.

WASHINGTON, DC - OCTOBER 12: Sen. Lamar Alexander (R-TN) speaks to reporters before going into the Senate Chamber to vote, on October 12, 2013 in Washington, DC. The shut down is currently in it's 12th day.
National Journal
Feb. 19, 2015, 3 p.m.

It has been more than a year since Harry Re­id set off a mush­room cloud in the Sen­ate cham­ber, be­com­ing the first lead­er in his­tory to use the nuc­le­ar op­tion to change the rules. Re­pub­lic­ans vowed re­venge.

But since tak­ing over the ma­jor­ity, Re­pub­lic­ans haven’t done any­thing about it. The vit­ri­ol over the rules change has quieted to a whis­per. And in in­tern­al GOP meet­ings on wheth­er to re­verse it earli­er this year, mem­bers were not only di­vided on what to do, but not one seemed par­tic­u­larly fired up about do­ing any­thing.

Now two Re­pub­lic­ans from very dif­fer­ent ideo­lo­gic­al back­grounds hope not to re­verse Re­id’s rules change, but to ex­pand it. And the Demo­crats who sup­por­ted Re­id go­ing nuc­le­ar now find them­selves say­ing, not so fast.

Sens. Lamar Al­ex­an­der and Mike Lee are push­ing le­gis­la­tion to once again change the Sen­ate’s rules, this time al­low­ing a simple ma­jor­ity of sen­at­ors to ap­prove of any White House nom­in­a­tion, in­clud­ing Su­preme Court justices.

The dif­fer­ence: They are adam­antly against us­ing the nuc­le­ar op­tion to get there. Un­like Re­id, Al­ex­an­der and Lee plan to op­er­ate with­in the Sen­ate’s rules to change them. And it’s go­ing to take two-thirds of the cham­ber to get there.

Sixty-sev­en sen­at­ors rarely agree on any­thing oth­er than nam­ing post of­fices and hon­or­ing vet­er­ans in the cur­rent polit­ic­al cli­mate, but Al­ex­an­der and Lee are hope­ful that they can con­vince two-thirds of their col­leagues to change the way the cham­ber op­er­ates.

But a change that makes it easi­er for the rul­ing party to con­firm Su­preme Court justices is a dif­fi­cult pill for either side to swal­low. Sure, Re­pub­lic­ans hold the Sen­ate ma­jor­ity now, but they could eas­ily lose it in 2016. And there’s no guar­an­tee that the next pres­id­ent will be a Re­pub­lic­an, either. Why change the rules to make it easi­er for a fu­ture Demo­crat­ic ma­jor­ity to con­firm, say, a pro-gay mar­riage or anti-gun judge nom­in­ated by Hil­lary Clin­ton to the Su­preme Court?

Demo­crats are just as wor­ried. For them, the is­sue comes down largely to abor­tion rights. “If Re­pub­lic­ans win the White House and keep the ma­jor­ity in the Sen­ate, they could con­firm a judge who would over­turn Roe [v. Wade] with 51 votes,” a Sen­ate Demo­crat­ic aide said. That is­sue alone makes it very un­likely that the ne­ces­sary 13 or more Demo­crats will help to pass the bill.

First, Al­ex­an­der and Lee will have to get their bill through the Sen­ate Com­mit­tee on Rules and Ad­min­is­tra­tion. The com­mit­tee was sched­uled to tackle the bill last week, but can­celed a hear­ing at the last minute. “I think the au­thors wanted more time,” said Sen. Ro­ger Wick­er, a Re­pub­lic­an mem­ber of the Rules Com­mit­tee, who is among the un­de­cided votes.

A Lee aide said that the com­mit­tee will likely re­sume con­sid­er­a­tion of the bill in March, after the Sen­ate has figured out a way to fund the Home­land Se­cur­ity De­part­ment.

Sen. Chuck Schu­mer, the rank­ing Demo­crat on the com­mit­tee, has said that the bill is a “non­starter” for most of his mem­bers. “I love Lamar, but when he first showed it to me, I said: ‘How can we do this for Su­preme Court?’” he said.

But Al­ex­an­der and Lee ar­gue that the rules change is hardly as mo­nu­ment­al as Demo­crats, and some Re­pub­lic­ans, are mak­ing it out to be. “All we’re do­ing really is put­ting in­to rule the tra­di­tion that’s been in the Sen­ate with rare ex­cep­tions since Thomas Jef­fer­son wrote the rules in 1789. The idea has al­ways been that pres­id­en­tial nom­in­ees get an up or down ma­jor­ity vote,” Al­ex­an­der said last week.

That didn’t really change un­til George W. Bush’s pres­id­ency, Al­ex­an­der said, when Sen­ate Demo­crats fili­bustered Miguel Es­trada’s nom­in­a­tion to the D.C. Cir­cuit Court over con­cerns that he was un­qual­i­fied for the job. Since then, both parties have used the 60-vote threshold to block ju­di­cial nom­in­ees. That is, un­til Re­id changed the rules in 2013.

The Al­ex­an­der-Lee le­gis­la­tion would lend le­git­im­acy to the rules change, with ap­prov­al from two-thirds of the Sen­ate. “We thought we would do two things: One is, let’s es­tab­lish the tra­di­tion that’s ex­is­ted since 1789 by rule. Let’s do it the right way, which is to get 67 votes. Maybe if we get in the habit of do­ing things the right way, the next time some­body sug­gests do­ing things the wrong way, sen­at­ors won’t do that,” Al­ex­an­der said.

Even if Al­ex­an­der and Lee man­age to get the bill over the fin­ish line in com­mit­tee, it’s un­clear what will be­come of the bill in the full Sen­ate. While Al­ex­an­der has dis­cussed the is­sue with Sen­ate Ma­jor­ity Lead­er Mitch Mc­Con­nell, he said he had not yet got­ten a guar­an­tee that the lead­er will bring his bill to the floor.

For now, the bill’s spon­sors are try­ing to take polit­ics out of the equa­tion, no easy feat in this Sen­ate. “Every­one’s try­ing to fig­ure out what the right polit­ics is, but the prob­lem is, if you’re basing your de­cision solely on polit­ics, then you’ll chase your tail forever. … We could lose the Sen­ate and we could ab­so­lutely win the pres­id­ency, so then what are the polit­ics?” a Lee aide said. “That’s why we’ve nev­er made the polit­ic­al ar­gu­ment. “¦ The rules should be con­sist­ent with the pre­ced­ent.”

Sen. Jeff Ses­sions, an Alabama Re­pub­lic­an who em­phas­ized that he hasn’t made up his mind about the bill, agreed with that line of reas­on­ing. “You’ve got a ma­jor­ity now, you don’t have a ma­jor­ity soon. You’ve got a Re­pub­lic­an pres­id­ent, a Demo­crat­ic pres­id­ent. They go back and forth. So we really should do the right thing for Amer­ica and the Con­sti­tu­tion over the long term,” he said. “I think we should es­tab­lish a policy that ex­tends bey­ond the next elec­tion.”

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