Jumping Up & Down

Ever since the announcement earlier this week of Justice Souter's retirement from the Supreme Court, the expectation is that the conservatives will try to nix whoever is nominated by President Obama, as the GOP gears up for Court fight. In keeping with being the "Party of No," as the Politico notes:

Senate Republicans admit they have virtually no shot at stopping President Barack Obama’s pick to replace Supreme Court Justice David Souter — but they see a definite political upside in waging a fight.

A small cadre of GOP researchers has already begun scouring the records of Souter’s potential replacements — hoping to find a trove of inflammatory legal writings or off-the-wall positions to hang around the necks of vulnerable Democrats in the 2010 midterms . . . .

“Whoever they get is basically a zero-sum replacement for Souter — so I think it’s more of an opportunity for us than it is for them,” said a senior Republican leadership aide, adding that a liberal nominee could hurt conservative Democrats like Sens. Blanche Lincoln (Ark.) and Evan Bayh (Ind.), both of whom are up for reelection in 2010. “I don’t think, given their majority, that we can stop them, but it’s a great opportunity for us to tie their incumbents to whatever crazy opinions or statements come to light.”

There has even been discussion of the possible filibuster of the nominee. As was noted by Booman Tribune, Will GOP Filibuster SCOTUS Pick?:

When Samuel Alito was confirmed, only four Democrats voted for him (Tim Johnson of South Dakota, Kent Conrad of North Dakota, Ben Nelson of Nebraska, and Robert Byrd of West Virginia). However, the real vote was to invoke cloture. On that vote, the Democrats were much more generous. The following Democrats (in addition to the previous four) voted for cloture: Daniel Akaka of Hawaii, Max Baucus of Montana, Jeff Bingaman of New Mexico, Maria Cantwell of Washington, Tom Carper of Delaware, Byron Dorgan of North Dakota, Daniel Inouye of Hawaii, Herb Kohl of Wisconsin, Mary Landrieu of Louisiana, Joe Lieberman of Connecticut, Blanche Lincoln of Arkansas, Bill Nelson of Florida, Mark Pryor of Arkansas, and Ken Salazar of Colorado.

Progressives were furious with all of these Democrats who voted for cloture because they allowed Alito to be confirmed with less than 60 votes (he got 58 votes).

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However, the Republicans of today are a different breed from the Democrats of 1991 and 2005. They just might attempt to filibuster a pro-choice Justice with every pro-life member that they have. That would be thirty eight members, and if anti-choice Democrats Mark Pryor, Bob Casey Jr., and Ben Nelson joined them, they could sustain a filibuster. It's theoretically possible.

How could anyone even be seriously discussing the issue. A filibuster for Supreme Court by the GOP? But that couldn't be. After all, the Republicans are the strenuous proponents of up and down votes for judicial nominees. I can still recall their strident cries against even the possibility of a filibuster by the Democratic minority during the Bush years.

To refresh our collective recollection, Media Matters has assembled the quotes of various legislators on the topic, In Their Own Words: The Majority's Prerogative, observing:

In 2005, many Republican Senators went so far as to claim the filibuster of judicial nominees was unconstitutional. Now four years later, with President Obama's first Supreme Court appointment looming, will they remain consistent in their position or commit one of the most blatant acts of hypocrisy in the 220-year history of the United States Senate?

On the other hand, as Steve Benen said, in A TRIP DOWN MEMORY LANE....

A talking point emerges.

...Republicans are eagerly pointing out that Barack Obama, while in the Senate, voted to filibuster the nomination of Samuel Alito to the court.

Well, that's at least accurate. Obama, as a senator, declined to filibuster the Roberts nomination, but opposed cloture on the Alito nomination. On this point, Republicans are not lying or playing fast and loose with reality.

That said, this stroll down memory lane may not be as fruitful for the GOP as they'd like. For one thing, Obama, right around the time of the Alito hearings and floor vote, made a variety of comments that Republicans may find interesting. For example, he told ABC News in January 2006, "[T]here is an over-reliance on the part of Democrats for procedural maneuvers and mechanisms to block the president [on judicial nominees] instead of proactively going out to the American people and talking about the values that we care about. And, you know, there's one way to guarantee that the judges who are appointed to the Supreme Court are judges that reflect our values and that's to win elections."

For another, the more Republicans focus on Obama's efforts during the Bush years, the more it's a reminder of their own efforts during the same period.

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I don't doubt that Republicans will shamelessly pretend none of this ever happened, and will pretend they never said the things they really did say, but I'm looking forward to the rhetorical acrobatics.

And even if there's not a direct filibuster, there may be a way for the Republicans to stymie the pick in Committee. Cornell Law Professor Michael Dorf suggests that Specter's defection from the GOP may allow that to happen, How Specter's Defection Could Make It Harder to Confirm Pres. Obama's Judicial Nominations:

Does Arlen Specter's defection from R to D strengthen the President's hand in Congress? Perhaps overall but not on judicial appointments because breaking (the equivalent of) a filibuster in the Senate Judiciary Committee requires the consent of at least one member of the minority. Before today, Specter was likely to be that one Republican. Now what?

Sam Stein of the Huffington Post confirmed this maneuver, but says that there may still be another Judiciary Committee procedural rule to get around that one. He explains the process, in How Obama's Supreme Court Nominee Can And Can't Be Filibustered:

The Majority Leader in the Senate has the power, it seems, to go around the Judiciary Committee's process. A source familiar with the rules of the Senate notes that "a judicial nomination may be discharged from a committee by unanimous consent." However, since -- in this hypothetical scenario -- Republicans are already objecting to the nominee, it seems likely that unanimous consent would fail.

That said, the source adds, "A motion to discharge a nominee from committee is also in order, but if there is objection to that motion, it must lie over a day. On the next day, you move to executive session to the motion to discharge, the vote on proceeding to executive session is majority vote, however, once you are on the motion to discharge it can be filibustered, so you would need 60 votes on the motion to discharge and then presumably on the nomination too."

In short: There is a parliamentary path to getting a stalled Supreme Court nominee out of the Judiciary Committee and to the Senate floor. That process would, like the ultimate confirmation vote, involve getting the 60 votes needed to break a filibuster just to get the nomination to the Senate floor. But with a bigger pool of Republicans (including some of like mind) it would seem likely that the White House could get the 60 votes needed to cut off debate.

No matter what, one thing is sure: That the Republicans will be jumping up & down about whomever is proposed by Obama, trying to figure out a way to stop the Senate from a straight up & down vote on the candidate.