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Thursday, April 30, 2009

Specter Defection Will Haunt Dems On Souter Replacement

News is breaking that Supreme Court Justice David Souter is retiring. There will be a fight over his replacement, for sure. And Arlen Specter switching may have given Republicans a trump card to block an unacceptable replacement.

Everyone, including me, has been blogging about how Specter defecting to the Democrats puts the Democrats close to a filibuster proof majority in the Senate, potentially allowing Obama to push through his agenda. And this seems true on most subjects.

But ironically, Specter's defection may give Republicans the ability to filibuster judicial nominees at the Judiciary Committee level, so the nominees never get out of committee.

Huh, you say. Here's the explanation, from Professor Michael Dorf of Cornell Law School at his excellent blog, Dorf on Law, written two days ago before Souter's retirement was in play:
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?
The link in Dorf's post is to Congress Matters, which has the Senate Judiciary Committee rule:

The Chairman shall entertain a non-debatable motion to bring a matter before the Committee to a vote. If there is objection to bring the matter to a vote without further debate, a roll call vote of the Committee shall be taken, and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with ten votes in the affirmative, one of which must be cast by the minority.

Now this is interesting. Specter could allow a nominee out of committee if Specter was a member of the Republican minority, but as part of the majority, he's just another vote. Here are the other Republicans: Orrin Hatch, Chuck Grassley, Jon Kyl, Jeff Sessions, Lindsey Graham, John Cornyn, and Tom Coburn.

The weak link is Lindsey Graham, who was a member of the Gang of 14. If Graham says the course, the Republicans may not be able to stop runaway spending, military retrenchment, and an interrogation witch hunt. But Specter may have handed Republicans a gift.

And how fitting that Joe Biden arranged it all by convincing Specter to switch. Thanks, Joe. I'm sure your boss will appreciate your service as he ponders who he will nominate for the Supreme Court.

UPDATE: How likely is it that the Senate will change the rules of the Judiciary Committee mid-session? Rules are adopted at the start of a Congressional year, although they can be amended:
RULE XXVI [of the Standing Rules of the Senate]
2. Each committee shall adopt rules (not inconsistent with the Rules of the Senate) governing the procedure of such committee. The rules of each committee shall be published in the Congressional Record not later than March 1 of the first year of each Congress, except that if any such committee is established on or after February 1 of a year, the rules of that committee during the year of establishment shall be published in the Congressional Record not later than sixty days after such establishment. Any amendment to the rules of a committee shall not take effect until the amendment is published in the Congressional Record.

I don't think it is likely that the Rules will be amended for a particular nomination. First, the rule requiring a minority vote only comes into play if Republicans decide to fight a nominee to the bitter end. Assuming Souter is replaced with a roughly equivalent moderate liberal, I don't see Republicans picking this fight. The existence of the rule itself should have a moderating effect on the choice made.

Second, changing the rules mid-session would itself be the cause of opposition to a candidate, and would taint any nomination before a vote of the full Senate. Remember, as of now the Democrats still do not have a filibuster-proof majority in the entire Senate, and even if Al Franken eventually gets seated, it would take only one of the handful of moderate Democrats to oppose a nominee for the filibuster to succeed. By forcing a nominee through committee by changing the rules, the administration would be increasing the likelihood of a problem.

Third, Harry Reid shot himself in the foot on rule changes by insisting that Roland Burris could not be seated without presenting the necessary Secretary of State certification. Reid's words about the sanctity of Senate Rules would come back to haunt him if the Senate changed the Judiciary Committee Rules just to force through a nomination.

UPDATE No. 2: See FoxNews story in which I am quoted extensively on this subject.

UPDATE No. 3: One of the commenters points out that the Senate could vote to discharge a nominee from the committee with 60 votes (the same as to defeat a filibuster). While this appears to be true, the committee minority-vote rule is an established committee rule, presumably negotiated prior to the start of this session. Invoking discharge would have the same effect as changing the committee rules in the middle of the session, so I think the same factors come into play. Why pass a committee rule requiring at least one member of the minority vote for the nominee, if you are not going to honor that rule by voting for discharge?

For more on this point of Senatorial deference to procedure, I recommend Lanny Davis' post earlier this year on the Gang of 14 compromise. The Judiciary Committee rule requiring a minority vote raises the stakes for any attempt to get around it, whether by rule change or discharge. Senators will have to decide whether the particular nominee at issue is "worth" tearing apart the committee rule, which means that nominees who may have been approved in the absence of the rule may not make it out of committee. It would be much easier for Democratic Senators to allow a nomination to die in committee (or more likely, be withdrawn like Harriet Miers) than to change the rules, so to speak, and force the vote to the floor of the Senate.

UPDATE No. 4: Harry Reid went back on his promise that Specter could keep his seniority. Can't wait to see how Specter reacts to that stab in the back. This should be very, very interesting. I wouldn't count on 60 just yet.

Related Posts:
Hoping For The Supreme Court Episode of "You've Been Punked By Obama"
Why Is Deval Patrick On Anyone's List?

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  1. EXCELLENT persepective. A little more hopeful now. Certainly not my first thought when hearing of Souter's planned retirement.

  2. But what is to keep the demoncrats from simply changing the rules to fit the current situation?

    They clearly have no qualms with doing so

  3. If Graham stays the course? Are you serious? I'm all for optimism, but that's ridiculous.

  4. Even if Graham stays the course, Grassley or hatch will flip. Neither of them have any principles as far as I am concerned. Throw some pork there way and their in. Very interesting idea though.

  5. If Dems changed judiciary committee rules, they would be in violation of other rules, which provide that committee rules must be published in the Federal Register by March 1 of the year. So the entire workings of the Senate would have to be changed. Otherwise, they have to wait until next Spring. Not saying they wouldn't do it, but it would be the legislative equivalent of WW3 if they did. And it would come back to haunt them big time, and since Senators serve for multiple decades, they tend to be more mindful of their future than in the House.

  6. Interesting, but someone will want to be loved. Of course they will soon be betrayed. I get tied of seeing this story. I hope I am wrong.

  7. Arlen Specter, Republican genius ?

  8. Obama can nominated a Hispanic with good qualifications, like someone from the Circuit of Appeals. It would amount to political suicide to try to block someone like Sonia Sotomayor.

    And there is also Grassley. Blocking a Circuit Judge may be easy, but blocking a Supreme Court Justice is another story.

  9. So wait, you mean my vote for Arlen Specter wasn't wasted after all? Weird.

  10. And what if the Dems say: go ahead, filibuster it and keep talking ...

  11. My wildest dream would be for a "reverse" Souter- a "stealth" righty, unknown, just like Souter was unknown to everyone. That would drive BO and his crew to distraction!

  12. The GOP doesn't have a lot of goodwill with the general public these days, especially with the media flacking for the administration like it is. The last thing the GOP needs is to get bogged down trying to play committee games with a SUPREME COURT nominee. Souter's a liberal; let them replace him with another, without a fight, and it will only help the GOP make the case against Democratic Judiciary Committee antics the next time around.

    Whatever happened to "elections have consequences" people? For all the talk of sticking to principles in the comments, this one seems strangely absent. There's no real need to get worked up anyway, since it won't alter the balance.

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  14. @ William Jacobson, they don't obey any laws as it is, what would possibly stop them from breaking or re-writing them at will?

  15. Matt, you sound incredibly sane. A refreshing change from all of the other commentators. Obama will get his Supreme Court nominee through the process fairly easily because he will pick someone qualified and competent. Obama won the election because America wanted him to make these types of decisions.

  16. Thank you for this update! Keep us in the loop!!

  17. Logan: Hmph. Show me that Obama knows anybody who's "qualified and competent". His other nominations do not precisely inspire in that connection.


  18. Your theory has merit, but only in theory, as there always exists the possibility of discharging the committee of the nomination by the full Senate. Any such motion is of course debatable, and thus subject to a filibuster. But that action is subject to the Senate's control.

    Committees are the creatures of the entire body, and there's no practical way that any nomination to the Supreme Court will be allowed to die in committee. Setting aside the precedent of nearly always allowing a floor vote for Supreme Court nominees (Abe Fortas being a notable exception), the Senate has procedural tools to force floor consideration of any matter.

    Perhaps there will be a filibuster, but if so, it will be on the Senate floor.

  19. Filibustering a nomination to Second rank officials or to a District Judge is easy because most people doesn´t know that these people exists.

    But the whole country watches a Supreme Court nomination. And filibustering is an equivalent to diving - simulating a injury - in soccer. It may be legal, but most people sees as cheating...

    If the Dems held a slim majority and Obama would choose a poor candidate, then, it could work. But Obama will have dozens of minority or women to choose in the Circuit of Appeals courts. And filibustering when you have a 40 senators minority? Blah.

    I didnt believe that Dems could filibuster Alito, I don´t believe that Reps will manage to filibuster anyone that Obama chooses.

  20. nice try, but fail.

    see rule xvii.

    a motion to discharge, which, guess what?, is debatable so 60 votes win, which is what you need anyway.

  21. Possible, but the committee rules still present a procedural obstacle, which would force a vote to overrule fellow Senators who invoke a negotiated committee rule. Invoking discharge is the same effect as changing the committee rules, so I think the same factors come into play. I never said this procedural problem was an absolute bar to a nominee being considered, only that it presents a meaningful obstacle given the politics of the Senate.

  22. Interesting post. I've never heard of that rule and I wonder how republicans got around it with Thomas, Alito and Roberts. If any dem senator on the J committe could have blocked them then I wonder, why didn't they? Personally I wouldn't expect Obama to nominate someone further to the left than they are to the right. But would any of the of the republicans on the committe would vote for a nominee as liberal as Souter or even close to him, its just not in their ideological DNA or in the expectations of their rabid and rapidly dwindling constituancies. Hatch maybe because he understands the history of the Senate and he has class. It will be interesting to see if a single conservative republican will treat an Obama nominee with the respect and dignity that liberal and moderate dems showed to Alito and Roberts. I seriously doubt it because they are too beholden to the likes of Rush, O'reily, Ingraham, and Levin, who it seems have conservatives and the republican party by the throat. What I expect is that Obama's nominee will be brilliant, liberal and buttoned down. Also very young, unflapable and not easily attacked. Just like him.

    Did you ever think that when Bush was reelected that 4 years later dems would have a 60 to 40 majority and with very good prospects of picking up more in 2010 because republicans will be defending 19 seats and dems only 14 or 15. If republicans decide that now is the time to alienate and abandon moderates and,like some democrats who wanted to pull their party further to the left in '04, then that rule likely go by the wayside one way or another.

  23. Nice theory, but in practice there will be very little difficulty in changing this rule if the GOP are holding out for Souter to be replaced with a Scalia.

    Last year the GOP was squeaking about the sanctity of an up or down vote. If they filibuster now they are going to be the hypocrites.

  24. On the Thomas nomination I think that Democrats thought that the questions about his relationship with Anita Hill would allieviate the need to block it. They misjudged the both willingness of the Republican moderates and liberal to dissent from the nomination, and the influence that the moderates have witin the party.

    The Roberts nomination was more problematic for the Democrats because, his manner and intellect positions caused him to be held in high esteem by leading members of both parties.

    In my mind his nomination reminded me a great deal of the nomination of Justice Cardozo as the successor to Justice Holmes by President Hoover in 1932.

    Senator Borah the Republican chair of the Senate Judiciary Committee met with President Hoover and inquired of him who was on his list of potential nominees. Hoover handed him the list at the bottom was Cardozo's name with the notation Democrat New York when Senator Borah took the list in hand he told the President Mr. president I think you handed me the list upisde down. Hoover protested that there were two new Yorkers on the Court Chief Justice Hughes and Associate Justice Stone. Borah's response was "Did that stop John Adams from noninating John Marshall as chief justice even though there was already a Virginian on the court prior to his nomination." He continued "Cardozo belongs to Idaho inasmuch as belongs to New York." Then Hoover protested on religious and political grounds to which, Borah said if those considerations come into play that he [Hoover] was not fit for the office to which he had been elected. As a result Cardozo was nominated and confirmed by voice vote within the day.

    Chief Justice Roberts was held in the same high regard so much so that when the Democrats fillibustered the coinsideration of judicial nominees. One of the few exempted from the fillibuster was John Roberts who was confirmed for a position on the D.C. Circuit by Voice Vote.