Saturday, February 13, 2016

Schumer has to threaten the full nuclear option to move McConnell on Supreme Court nomination

In the wake of Supreme Court Justice Antonin Scalia’s death, Republicans abandoned any pretense at decorum and immediately began issuing pronouncements as to how and when Scalia’s seat should be filled—namely, not by Barack Obama. If that’s the way they want to play it, then fine: Here’s how Democrats should respond.

There’s no law or Senate rule that can compel Mitch McConnell, the GOP majority leader, to allow a vote to proceed on anyone Obama might nominate. McConnell could choose to wait as long as he likes—indeed, he can wait until Republicans control both the White House and the Senate at the same time. And if that situation doesn’t obtain in 2017, he could delay confirmation hearings until 2021, or 2025—whenever the red stars finally align.

Could “political pressure” move McConnell any more quickly? Unlikely. Republicans don’t care what the traditional media says about them—hell, they love to claim the press is their enemy—so even if a thousand newspaper editorial boards exhorted McConnell to move forward on a nomination, he’d just shrug his shoulders. And it’s even less likely that any Republican senator would find him or herself threatened for re-election because of GOP recalcitrance. Process stories rarely move voters.

But there is one force in this universe McConnell does have to respect, and that’s the nuclear option. In 2013, when Senate Democrats eliminated the use of filibusters for most presidential appointments, they still kept them in place for Supreme Court nominations. Therefore, even if Republicans lose both the Senate and the White House this November, they could still filibuster any Supreme Court pick that Hillary Clinton or Bernie Sanders might put forward in 2017.

And that’s why Chuck Schumer, who will replace Harry Reid as leader of the Senate Democrats next year, has to be willing to go full thermonuclear and end the filibuster once and for all if Democrats retake the chamber. In that scenario, a Democratic president could nominate whomever he or she likes, and the Democratic-controlled Senate could confirm that person, with as few as 50 votes since the vice president would break ties.

Schumer needs to issue this threat now, while it can still credibly be made: If McConnell doesn’t act on a nomination this year and Democrats fail to retake the Senate, then McConnell can simply delay forever. Republicans would certainly prefer a court split between four liberal and four conservative justices to one with a liberal majority.

But McConnell has to fear the possibility of losing his majority leader’s gavel—the Senate playing field doesn’t favor the GOP this year. And if he also fears Schumer will get rid of the filibuster even for Supreme Court nominations, then he’ll be motivated allow Obama to name a replacement for Scalia now. This way, McConnell would have more leverage. If waits, he risks winding up in the minority and having Schumer run roughshod over him. McConnell’s smart enough to know what the better choice is, and that’s acting now.

But to push him into action, Schumer has to prove he's ready to enter the launch codes and press the big red button.

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