As Jonathan Chait notes, only five Republican senators voted to confirm Justice Elena Kagan to the Supreme Court, and three of those senators — Judd Gregg, Richard Lugar and Olympia Snowe — are no longer in the Senate. If Republicans take the Senate this November, there is a very real possibility that no one President Obama nominates to a Supreme Court vacancy, no matter what their record or qualifications, could be confirmed to the Court.
We made a similar point in 2012, when Tea Party candidate Richard Mourdock defeated Lugar in a Republican Senate primary after he attacked Lugar for his support of Kagan and Justice Sonia Sotomayor. As we wrote then, “[i]n light of this incident, it is unlikely that any of the few remaining Republicans who backed an Obama Supreme Court appointee will be willing to risk their careers by doing the same again.”
Indeed, under the Senate’s current rules, Republicans could block a Supreme Court appointment right now, if they chose to, even though Democrats effectively control 55 percent of the Senate. Last November, when Senate Democrats voted to invoke the so-called “nuclear option” and end the GOP’s ability to require a supermajority to vote to confirm most nominees, they left in place the 60 supermajority requirement for Supreme Court confirmations. As a result, unless at least five Republicans oppose a GOP filibuster of a Supreme Court nominee, the current rules allow the GOP to keep that nominee from being confirmed.
Of course, if the vacancy were to arise right now, when Democrats control a solid majority of the Senate’s seats, it would be a simple matter to invoke the “nuclear option” again — a procedure that allows the Senate’s rules to be changed by a simple majority vote. But that assumes that a majority of the Senate is willing to support such a rules change.
Although Republicans have not, to say the least, been particularly cooperative when it comes to confirming President Obama’s judges, the truth is that there are some GOP senators who have been less obstructionist than others. Earlier this month, for example, Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK) voted with Democrats on Michelle Friedland’s nomination to the United States Court of Appeals for the Ninth Circuit. Friedland, by virtue of the fact that she once clerked on the Supreme Court and that she is a relatively young 41 years-old, is a plausible Supreme Court nominee in a Democratic administration.
The nightmare scenario for Democrats under the current Senate rules arises if Republicans take over the Senate but Collins and Murkowski break with their party to support President Obama’s future Supreme Court nominee. This November, Democrats must defend their gains from the 2008 wave election year where they won seats in states like Alaska and Arkansas where Democrats typically do not fare particularly well. It is easy to imagine Republicans emerging with a slight majority — maybe 51 seats — once all the votes are counted.
Under that scenario, an Obama nominee is still likely to be supported by all 49 of the remaining members of the Democratic caucus, and that nominee could be supported by a handful of Republicans as well. Nevertheless, it is unlikely that any Republican would vote at that particular moment to change the Senate’s rules in order to allow a Supreme Court nominee to clear the Senate by a simple majority vote. To do so would likely be political suicide.
The Senate Democrats’ decision to cut Supreme Court nominees out of the nuclear option last November, in other words, could prove deadly for any nomination President Obama sends to the Senate. If Republicans take the Senate this November, we may need to get used to seeing an empty seat on the Supreme Court for a very long time.