Sen. Jeff MerkleyJeff MerkleyOvernight Energy & Environment — Presented by the League of Conservation Voters — Senate Finance chair backs budget action on fossil fuel subsidies Top Democrat says he'll push to address fossil fuel tax breaks in spending bill Democrats revive filibuster fight over voting rights bill MORE (D-Ore.) on Monday predicted that Democrats would launch a filibuster against whoever President TrumpDonald TrumpUkraine's president compares UN to 'a retired superhero' Collins to endorse LePage in Maine governor comeback bid Heller won't say if Biden won election MORE picks for the Supreme Court.
“This is a stolen seat. This is the first time a Senate majority has stolen a seat,” Merkley told Politico. “We will use every lever in our power to stop this. ... I will definitely object to a simple majority.”
Though any senator can require a 60-vote threshold for a Supreme Court nominee, filibusters against picks for the top court remain rare. Democrats last tried to use the filibuster to block Justice Samuel Alito under President George W. Bush's administration and failed.
But Merkley's remarks reflect the heated tensions around the judicial branch ahead of Trump's announcement on Tuesday. Democrats are still quick to point out that Republicans refused to give Merrick Garland, President Obama's pick to replace conservative Justice Antonin Scalia, a hearing or a vote.
Republicans have also been gearing up for the looming court battle, urging Democrats to treat Trump's first nominee the same way as Supreme Court picks under President Obama's first term.
“Under [President Bill] Clinton, [Ruth Bader] Ginsburg and [Stephen] Breyer, no filibuster, no filibuster. In other words, no one required us to get 60 votes,” Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellOn The Money — Democrats rush to finish off infrastructure Biden employs flurry of meetings to unite warring factions GOP senators say Biden COVID-19 strategy has 'exacerbated vaccine hesitancy' MORE (R-Ky.) told reporters last week. “Under Obama, [Sonia] Sotomayor and [Elena] Kagan, no filibusters. That's apples and apples. First term, new president, Supreme Court vacancy.”
He added, “What we hope would be that our Democratic friends will treat President Trump's nominees in the same way that we treated Clinton and Obama.”
Trump said Monday that he would announce his pick to replace Scalia Tuesday night.
It’s not clear if Democrats would be able to support a filibuster on any Trump pick.
A number of Democrats in the Senate represent red states that voted for Trump — and many of them are up for reelection next year.
The Senate Leadership Fund (SLF), which has ties to McConnell, quickly sent out emails questioning whether the red-state Democrats would back Merkley’s filibuster.
Of Sen. Joe ManchinJoe ManchinBiden touts 'progress' during 'candid' meetings on .5T plan Manchin: Biden told moderates to pitch price tag for reconciliation bill Biden employs flurry of meetings to unite warring factions MORE (D-W.Va.), the group said: “Will he stand with the people of his state who overwhelmingly voted for Donald Trump to be able to pick a Supreme Court nominee? Or will he stand with [Sens.] Elizabeth WarrenElizabeth Warren11 senators urge House to pass .5T package before infrastructure bill Senate Democrats seeking information from SPACs, questioning 'misaligned incentives' UN secretary-general blasts space tourism MORE [Mass.], Bernie SandersBernie SandersBiden touts 'progress' during 'candid' meetings on .5T plan Manchin: Biden told moderates to pitch price tag for reconciliation bill Biden employs flurry of meetings to unite warring factions MORE [Vt.], and the rest of the Democratic caucus that only cares about its far left base of permanent protesters?”
The SLF sent out similar releases for Democratic Sens. Claire McCaskillClaire Conner McCaskillRepublicans may regret restricting reproductive rights Sunday shows preview: States deal with fallout of Ida; Texas abortion law takes effect Giuliani to stump for Greitens in Missouri MORE (Mo.), Joe DonnellyJoseph (Joe) Simon DonnellyRepublicans may regret restricting reproductive rights Sanders traveling to Iowa, Indiana to pitch Biden's spending package Supreme Court battle could wreak havoc with Biden's 2020 agenda MORE (Ind.), Heidi HeitkampMary (Heidi) Kathryn HeitkampWashington's oldest contact sport: Lobbyists scrum to dilute or kill Democrats' tax bill Progressives prepare to launch counterattack in tax fight Business groups aim to divide Democrats on .5T spending bill MORE (N.D.) and Jon TesterJonathan (Jon) TesterBiden touts 'progress' during 'candid' meetings on .5T plan Manchin: Biden told moderates to pitch price tag for reconciliation bill Democrats say Biden must get more involved in budget fight MORE (Mont.), who are each up for reelection in states carried by Trump.
Republicans hold 52 seats in the Senate and would need eight Democrats to vote with them to break a filibuster.
The GOP also could opt for the “nuclear option” by changing Senate rules to get rid of the 60-vote threshold for Supreme Court nominees. McConnell has repeatedly signaled he does not want to take that step, most recently in an interview with The Hill on Friday.
The National Republican Senatorial Committee (NRSC) also sent out a release questioning if “eight is enough,” playing off Democrats slogan last year that the Supreme Court needed nine justices.
“National Democrats’ lurch to the left is quickly becoming a problem for Senate Democrats up for reelection in red states,” said NRSC spokesman Bob Salera. “It will be telling whether Senate Democrats honor the will of voters and listen to their own ‘We need nine’ rhetoric or side with Keith Ellison and the far left, and adopt a ‘take our ball and go home’ strategy with the Supreme Court.”
Senate Democratic leadership hasn't publicly signed on to Merkley's push, but Senate Minority Leader Charles SchumerChuck SchumerBiden touts 'progress' during 'candid' meetings on .5T plan Progressives push for fossil subsidy repeal in spending bill Louisiana delegation split over debt hike bill with disaster aid MORE (D-N.Y.) has pledged to fight “tooth and nail” if Trump's nominee isn't “mainstream.”
“If the nominee is not bipartisan and mainstream, we absolutely will keep the seat open,” Schumer told CNN’s “State of the Union” earlier this month.