Republicans are talking filibuster again—and out both sides of their mouths. If they keep the Republican majority and by some miracle gain the White House, they'll happily go nuclear and get rid of the filibuster for a Republican nominee. If, however, things don't go their way in November, they're considering blocking a nominee indefinitely, never mind what the voters have to say about it.
“The fundamental point here we’ve made over and over and over again is who ought to make the appointment, and 52 senators have said they believe the next president ought to make this appointment,” [Majority Leader Mitch] McConnell said at his weekly new conference. “And the next Senate would decide how to dispose of that under the advice and consent [clause of the Constitution].”
McConnell has plenty of company in thinking there is no contradiction in letting the people have a say this year, while being willing to filibuster the results next year.
“Clearly the requirement for 60 votes [to confirm a nominee for] the Supreme Court is going to remain, regardless of whether it’s Republicans or Democrats that are in control of the Senate,” Sen. Mike Rounds (R-S.D.) said.
“The Senate has the constitutional prerogatives of advice and consent. It’s part of the Constitution,” Sen. Thad Cochran (R-Miss.) said. “I say do not change the rules of the Senate for this nominee.”
This might be the very best (and by best we mean most obnoxious) argument for the 60-vote margin, from Kansas Sen. Pat Roberts: "You gotta go back to Jim Madison, I think, when the Founding Fathers sat around—it used to be 67, and now it’s down to 60 [senators to defeat a filibuster]. But if you go to 51, then you're just like the House." Clue for Sen. Roberts—Republicans have made the Senate just like the House already!
So much for the filibuster being part of the grand tradition of the institution, blah, blah, blah. This is why Sen. Chuck Schumer, the next Democratic leader in the Senate and quite possibly the next majority leader, has to signal that he's willing to go nuclear on the Supreme Court filibuster if Democrats get the Senate back, and he has to be lining up support for it in his conference, as well. It might just move McConnell to break his blockade now, and it would take the teeth out of the Republicans' current threats.
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