Republicans clash on reversing nuclear option in Senate

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 Mason ReidWarner backing 'small carve-out' on filibuster for voting rights Senate hopefuls embrace nuking filibuster Biden fails to break GOP 'fever' MORE (Nev.) and go back to rules that require 60 votes to clear most nominees.

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The GOP was outraged last year after Reid and Democrats used a procedural move known as the “nuclear option” to unilaterally change the Senate’s rules to deprive the minority from being able to block most of President Obama’s nominations.

“I think it’s rank hypocrisy if we don’t,” Sen. John McCainJohn Sidney McCainMeghan McCain on Pelosi, McCarthy fight: 'I think they're all bad' Democrats seek to counter GOP attacks on gas prices Biden nominates Jeff Flake as ambassador to Turkey 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 GrassleyThe Hill's Morning Report - Presented by Facebook - Jan. 6 probe, infrastructure to dominate week Grassley pressured to run as Democrats set sights on Iowa The Hill's Morning Report - Pelosi considers adding GOP voices to Jan. 6 panel 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 McConnellAddison (Mitch) Mitchell McConnellTrump Jr. inches past DeSantis as most popular GOP figure in new poll: Axios House rejects GOP effort to seat McCarthy's picks for Jan. 6 panel Senators scramble to save infrastructure deal 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 Grant HatchDrug prices are declining amid inflation fears The national action imperative to achieve 30 by 30 Financial market transactions should not be taxed or restricted 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 Olin GrahamGOP sees debt ceiling as its leverage against Biden DACA court ruling puts weight of immigration reform on Democrats Senate braces for a nasty debt ceiling fight 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 CrapoMichael (Mike) Dean CrapoHow Sen. Graham can help fix the labor shortage with commonsense immigration reform Lobbying world On The Money: Biden fires head of Social Security Administration | IRS scandals haunt Biden push for more funding MORE (R-Idaho) and Jim RischJim Elroy RischSenate panel advances controversial public lands nominee in tie vote GOP senators invite Yellen to brief them on debt ceiling expiration, inflation Top Democrat leads bipartisan trip to Middle East 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 PaulRandal (Rand) Howard PaulGOP Rep. Cawthorn says he wants to 'prosecute' Fauci Writer: Fauci, Paul clash shouldn't distract from probe into COVID-19 origins S.E. Cupp: 'The politicization of science and health safety has inarguably cost lives' MORE (Ky.), Ted CruzRafael (Ted) Edward CruzTrio of Senate Republicans urges Supreme Court to overrule Roe v. Wade Overnight Defense: US launches another airstrike in Somalia | Amendment to expand Pentagon recusal period added to NDAA | No. 2 State Dept. official to lead nuclear talks with Russia No. 2 State Dept. official to lead nuclear talks with Russia next week MORE (Texas) and Marco RubioMarco Antonio RubioGOP lawmakers request Cuba meeting with Biden Bipartisan congressional commission urges IOC to postpone, relocate Beijing Games Hillicon Valley: Democrats introduce bill to hold platforms accountable for misinformation during health crises | Website outages hit Olympics, Amazon and major banks 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.”