Republicans are gleeful over Democratic-engineered rule changes that will make it easier for President-elect Donald Trump to get his Cabinet nominees through the Senate. Yet Democrats see a lasting upside from what they did: allowing President Barack Obama to shape the federal judiciary for years to come.
Democrats in 2013 scaled back the power of the Senate minority to throw roadblocks in front of a president’s nominees. In the years that followed, the Senate confirmed almost 100 federal judges nominated by Obama, bringing to 329 the number of judicial nominees confirmed during Obama’s term in office.
The impact of those lifetime appointments will be especially felt on the federal appeals court in Washington, often called the second most important court after the Supreme Court because it hears many cases on environmental and other regulations. Judges picked by Republican presidents had dominated the court, but now Democratic appointees hold a 7-4 advantage. Obama has put four judges there, including three after the rules changes.
Outgoing Senate Democratic leader Harry Reid engineered the changes, dubbed the “nuclear option” because of the intensity they could add to partisanship, after Republicans blocked many of Obama’s nominees. Even with a Republican majority in the Senate, the Nevada Democrat says he would do it again.
“The nuclear option lets presidents show their true colors and guarantees a nominee a fair up-or-down vote,” Reid said in a statement this week. “If Republicans want to go on record supporting radicals, that’s their decision and they will have to live with it.”
Nan Aron, the president of the liberal judicial advocacy group Alliance for Justice, says that if the rules hadn’t been changed, Trump would now be filling seats on the D.C. circuit and other courts.
“They will undoubtedly hear challenges to Trump’s regulatory agenda, challenges to executive orders,” Aron said.
In November 2013, the rules changes reduced the number of votes needed to end filibusters, or procedural roadblocks, on nominations from 60 to a simple majority, usually 51. Republicans are on track to hold 52 seats next year, meaning they won’t need any Democratic votes to confirm the new Cabinet — or confirm federal judges whom Trump himself is expected to nominate.
At the time of the changes, Republican leader Mitch McConnell warned Democrats that the strategy could backfire.
“I say to my friends on the other side of the aisle, you will regret this, and you may regret it a lot sooner than you think,” McConnell said on the Senate floor.
Sen. Chuck Schumer, the New York Democrat who will replace Reid as minority leader, says the pressure will now be on Republicans, “many of whom had serious qualms with the (presidential) campaign that was run, to determine whether these nominees will be fit to lead these agencies.”
Still, Democrats will feel the consequences if they seriously oppose any of Trump’s nominees. When he chose Alabama Sen. Jeff Sessions to be attorney general last week, some Democrats expressed immediate concern. Vermont Sen. Patrick Leahy said that he disagreed with Sessions “particularly on civil rights, voting rights, immigration and criminal justice issues.”
For Trump’s nominees to run into trouble, they will have to anger fellow Republicans. That may be the case for his nominee for CIA director, Kansas Rep. Mike Pompeo. Pompeo has rejected accusations that U.S. intelligence and military personnel were “torturers” for harshly interrogating terror suspects captured after 9/11, saying they were “patriots.”
Republican Sen. Rand Paul of Kentucky said on CBS’s “Face the Nation” last Sunday that he wants to know more about Pompeo’s views on torture and also whether he supports expanding powers of the National Security Agency.
“He’s going to have to also answer, to my liking, whether or not he’s still for torture, whether or not he’s for waterboarding,” Paul said. “That’s important.”
Democrats will still have the power to filibuster one nomination — whomever Trump chooses to replace the late Supreme Court Justice Antonin Scalia. McConnell said last week that he wouldn’t anticipate yet that Democrats would try to block Trump’s nominee “or what we might do in reaction to that.”