Democrats Contemplate How To Forfeit Their Power Upon Regaining The Senate

Senators say they're open to restoring the filibuster for Supreme Court nominees.

WASHINGTON ― After watching Senate Republicans lower the threshold for confirming a Supreme Court justice in order to vote Neil Gorsuch onto the court, Senate Democrats are openly talking about making it harder for themselves to do the same, if and when they regain power.

Over the past few days, a number of Democratic lawmakers have said they’d be open to bringing back the filibuster for Supreme Court nominees.

“When the Democrats return to the majority and capture the presidency ― which we will, that day is going to arrive ― we will restore the 60-vote margin,” Sen. Ed Markey (D-Mass.) told MSNBC on Monday. “We will ensure that for the Supreme Court, there is that special margin that any candidate has to reach, because that is essential to ensuring that our country has a confidence in people who are nominated, rather than just someone who passes a litmus test.”

The idea that Democrats would one day make it harder for a Supreme Court nominee to be confirmed is baffling from a partisan standpoint. Under such a scenario, Democrats would be in control of the Senate, and would therefore already have the number of votes needed to defeat any nominee ― since as of last week, the process now requires just a simple majority vote. Thus, if Democrats controlled the Senate and the president were a Republican, Dems wouldn’t need to raise the filibuster threshold to block that president’s choice. And if the president were a Democrat, Senate Dems would actually be making it harder for that president’s nominee to end up on the court.

Some Democrats arguing for the re-institution of the Supreme Court filibuster have talked about it in terms of regaining institutional authority for the legislative branch and encouraging more bipartisanship. They’ve also discussed setting the threshold at something lower than 60 votes, so as to encourage collaboration between the two parties without necessarily risking a nominee.

“One of the things I floated a number of times... was a swap,” said Sen. Chris Coons (D-Del.), who tried and failed to negotiate a resolution to the Gorsuch standoff. “Let’s repair some of the damage done in 2013. Restore a filibuster for Cabinet, sub-Cabinet, district court, circuit court. But make it a 55-vote margin or a 56-vote margin. And in exchange for that, let’s lower the filibuster margin for the Supreme Court to 56.”

“I would be very interested in both strengthening the filibuster rule and strengthening just some of the operations of the institutions of the Senate so that there has to be bipartisanship,” Coons went on. “So that there has to be a few members of the other party signing off and supporting everything.”

But such talk might just be strategic posturing. After all, when Democrats changed the rules in 2013 to make it easier for lower court and Cabinet nominees to get through, then-Senate Minority Leader Mitch McConnell (R-Ky.) signaled that he had no desire to meddle with the Supreme Court filibuster. As recently as this January, McConnell was saying it would require 67 votes to change that rule ― something that he proved, this past week, was abundantly not true, when he pushed the changes through with a majority. It’s easier to argue in defense of norms and rules and bipartisanship when you’re not in a position to make political gains.

Sen. Chris Murphy (D-Conn.) was more cautious Monday afternoon, telling MSNBC, “I don’t actually think Republicans should bet the farm on Democrats reversing course if and when we take control of the Senate.”

Asked in January whether he too was open to reinstating the filibuster rules originally overturned by Democrats, Senate Minority Leader Chuck Schumer (D-N.Y.) hinted at a willingness.

“I’d have to discuss that, but it’s something I’d certainly consider, yes,” Schumer told The Huffington Post, insisting that he argued against changing the rules in 2013.

This story has been updated with comments from Sen. Murphy.

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