Republicans are split over whether to change the Senate’s rules to allow filibusters on executive and judicial nominations.
As they head into a conference meeting on Tuesday, some Republicans say it’s time to undo a wrong committed by Democratic Leader Harry ReidHarry ReidReid: Comey should be investigated in wake of Russia report Spokesman: NY Times ignored Reid's comments in pre-election story on Russia Senate passes dozens of bills on way out of town MORE (Nev.) and go back to rules that require 60 votes to clear most nominees.
“I think it’s rank hypocrisy if we don’t,” Sen. John McCainJohn McCainSunday shows preview: Trump sits down with Fox McCain: Tillerson ties to Putin a 'matter of concern' Second Dem calls for probe into Russian election involvement MORE (R-Ariz.) said when asked about reversing the rule change.
“If we don’t, then disregard every bit of complaint that we made, not only after they did it but also during the campaign,” he added. “I’m stunned that some people want to keep it.”
But other Republicans say now that Democrats have changed the rules to allow nominations aside from those to the Supreme Court to clear by majority vote, the GOP should go with the flow.
“I’m leaning toward leaving it alone,” said Sen. Chuck GrassleyChuck GrassleyDem senator seeks more time for 'due diligence' on Sessions nomination Senate sets date for hearings on Sessions's attorney general nomination Mnuchin, Price meet with GOP senators MORE (R-Iowa), the incoming chairman of the Senate Judiciary Committee.
Senior Republican members of the Senate Judiciary Committee see little tactical advantage in restoring the 60-vote threshold for nominees when they control the agenda next year.
They argue that if Obama nominates officials and judges who are too extreme, the Senate Judiciary could simply not report them to the floor, or incoming Senate Majority Leader Mitch McConnellMitch McConnellHeitkamp is Trump's top choice for Agriculture secretary: report Schumer calls for Senate probe into Russian interference Senate passes stopgap funding bill, averting shutdown MORE (R-Ky.) could decide not to schedule them for votes.
They assert that reversing the nuclear option would not benefit them in the long term because Democrats would likely trigger it once again if they reclaimed the majority while their party controlled the White House.
And if a Republican wins the presidency in 2016, they want that officeholder to be able to shape his or her administration and the judicial branch with as free a hand as Obama has enjoyed during the final three years of his term.
“An immediate return to the prior nominations standard under Republican control would only reward Democrats for their misdeed and — since they have reaped the benefits but borne none of the costs — Democrats would have further incentive to engage in procedural abuses,” Sen. Orrin HatchOrrin HatchTax reform: Starting place for jobs, growth Overnight Finance: Senate Dems dig in as shutdown looms | Trump taps fast-food exec for Labor chief | Portland's new CEO tax Mnuchin, Price meet with GOP senators MORE (R-Utah), a former Judiciary Committee chairman, wrote in a Monday op-ed for Politico.
It’s unclear which position will prevail when GOP senators meet Tuesday afternoon to discuss the issue. All of the GOP senators, including the 12 newly elected freshmen from 2014, will take part in the debate.
McConnell hasn’t weighed in one way or another and will let his colleagues hash out their differences at the special caucus meeting, according to a senior GOP aide.
Grassley said that paving a smoother road for executive and judicial nominees would restore the Senate to how it was 15 years ago, before both parties began to use filibusters routinely to throw up roadblocks.
“I served 34 years in the Senate, 20 was under pretty much an environment where filibusters weren’t used against judges,” he said. “That changed in 2002, I guess. I don’t think it’s been good for the process.”
But other senior Republicans are incredulous that their colleagues would embrace Reid’s overhaul of Senate precedent, given the possibility they could again end up in the minority.
“Do we believe that Republicans will hold the majority in Congress forever? If it poisoned the well as much as it did, how could we possibly be in favor of sustaining it?” McCain said.
McCain’s ally, Sen. Lindsey GrahamLindsey GrahamDemocrats unnerved by Trump's reliance on generals Graham slams Russia Second Dem calls for probe into Russian election involvement MORE (R-S.C.), argues that restoring the 60-vote hurdle will make it tougher for Obama to stock the courts in the next two years.
“I think it would be smart for us to go back to the way it used to be, getting the Senate back to the way it’s always been and making it harder to get people into the court and into the executive branch, not easier,” he told conservative radio host Hugh Hewitt.
Sens. Mike CrapoMike CrapoDodd-Frank ripe for reform, not repeal Ryan lights Capitol Christmas tree Ex-Im faces new problems with Trump MORE (R-Idaho) and Jim RischJim RischGOP senators avoid Trump questions on rigged election GOP to Obama: Sanction Chinese entities to get to North Korea Research: Infrastructure systems easy to hack, a little slow to patch MORE (R-Idaho) said Monday evening they were inclined to restore the 60-vote threshold.
Grassley, who will make a presentation at the Tuesday meeting, acknowledged he doesn’t know how it will turn out and admitted he’s open to persuasion.
Democrats said the change was needed to preempt GOP obstructionism, and the shift has made it much easier for Democrats to approve many of Obama’s nominations.
Reid’s staff pounced on Hatch’s comments as validation that they were right to make the change.
“Sen. Hatch’s op-ed is just the latest evidence that perhaps Republicans’ objections to the rules change were more about the self-serving politics of the moment than principle all along,” Adam Jentleson, Reid’s spokesman, wrote in a note to reporters.
Republicans on the other side of the debate, however, warn that if the GOP adopts the change, it could lead to further cuts to minority rights in the Senate going forward.
“Any diminution of the right to filibuster a nominee means someday there’s a greater chance of getting rid of the legislative filibusters. Once you go down that road the next step is to get rid of the filibuster for legislation,” said one Senate GOP aide.
A group of Senate Democrats tried to convince colleagues at the start of the 113th Congress to implement the talking filibuster, which would require lawmakers to actively hold the floor to block legislation. Such a reform would make it much more arduous for the minority to use its leverage.
Three Republicans angling for the presidency — Sens. Rand PaulRand PaulSunday shows preview: Trump sits down with Fox Trump stumps for Louisiana Senate candidate ahead of runoff Giuliani won't serve in Trump administration MORE (Ky.), Ted CruzTed CruzSenate passes dozens of bills on way out of town Senate passes stopgap funding bill, averting shutdown Senate advances funding measure, avoiding shutdown MORE (Texas) and Marco RubioMarco RubioSenate clears water bill with Flint aid, drought relief What Trump's Cabinet picks reveal House passes water bill with Flint aid, drought relief MORE (Fla.) — who might stand to gain from keeping the nuclear order have kept a low profile on the question. Their offices declined to comment Monday afternoon on the debate.
The conservative groups most active in the judicial confirmation wars, however, firmly support keeping the simple-majority threshold for nominees.
Carrie Severino, chief counsel to the Judicial Crisis Network, said that restoring the 60-vote threshold for nominees would not bind future Democratic majorities to abide by it.
“It’s an untenable situation to have a 60-vote standard for Republicans and a 50-vote standard for Democrats, which is what I think it would turn into,” she said. “I don’t think you can put the genie back into the bottle.”