Tag: Justice Antonin Scalia

Kill the Legislative Filibuster?

By Todd Lassa

Before last November’s election, Joseph R. Biden punted on the question of whether he supports killing the Senate legislative filibuster. It’s a move Senate Democrats have been considering at least since it won a majority by the slimmest of margins, with Vice President Harris the tie-breaker for when legislation is split down party lines 

The issue is not the first priority with Senate Democrats, who are moving President Biden’s $1.9-trillion coronavirus relief package via the arcane reconciliation process, which requires a simple majority vote rather than the 60 votes – including 10 Republican senators – necessary when the potential of a filibuster is involved. 

The question is, how much legislation can Biden’s Democratic allies in the Senate pass in the next two years without eliminating the legislative filibuster, which means most bills will require those 10 Republican votes? After January 2023, Democrats either will lose their wafer-thin Senate majority, or will build on it, though it is unlikely either party will gain at least 10 senators in the November 8, 2022 mid-terms. 

Filibuster reformation seems to come up every four years with the presidential election, if not every two years. 

In 2013, then-Senate Majority Leader Harry Reid, D-NV, rallied Democrats to end the filibuster for federal judicial nominees and executive office appointments. Spiking the filibuster, called “the nuclear option,” requires only a simple majority vote. 

Republicans warned that triggering the nuclear option on appointing federal judges would come back to bite Democrats whenever they inevitably lost the Senate majority. 

And they were right. In 2017, then-Senate Majority Leader Mitch McConnell, R-KY, led a majority of his party to end the judicial filibuster for U.S. Supreme Court nominees, paving the way for President Trump’s nomination of Neil Gorsuch as replacement for the late Justice Antonin Scalia. Adding hard-core partisanship to injury, Gorsuch’s Senate approval came the year after McConnell prevented a vote on Obama’s nominee late in his term to replace Scalia, Merrick Garland, who now is Biden’s nominee for attorney general.

In the end, Trump saw his three Supreme Court associate justice nominees get Senate approval in his four years in office, compared with Obama’s two associate justices in eight years. 

The question for Democratic senators now is, how much more of Biden’s agenda could the Senate pass in the next 23 months if just 51 votes were needed? And would it be worth weathering the inevitable Senate and White House flip somewhere off in the future?

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Barrett is on Her Way to Senate Confirmation before the Election

By Todd Lassa 

Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., has scheduled the panel’s vote on the nomination of Judge Amy Coney Barrett to the U.S. Supreme Court for 1 p.m. Thursday, Oct. 22. The committee, comprising 13 Republicans and 10 Democrats, is considered a sure bet for approving Barrett, whose hearings with the panel concluded Wednesday.

The full Senate will vote to approve Barrett before the presidential election Nov. 3, Graham said. With just two Republican senators, Lisa Murkowski of Alaska and Susan Collins of Maine, having earlier opposed seating a replacement for the late Justice Ruth Bader Ginsburg before the election, the GOP still maintains a majority to approve President Trump’s nominee before the month is over. 

In her appearances before the Judiciary Committee Tuesday and Wednesday, Barrett carefully demurred on questions from Democratic members over concerns the nominee would rule with the court’s fortified conservative majority on potential disputes over the Nov. 3 election, as well as a case the Trump administration brought to the courts over the Affordable Care Act. For the longer term, Democrats interrogated the conservative Catholic mother of seven on her views regarding the 1973 Roe vs. Wade Supreme Court case that made abortion legal nationally. 

But on these and other matters, Barrett repeatedly declined to answer on potential future cases. 

In her opening remarks, Barrett described herself as an “originalist” in the mold of her mentor, Justice Antonin Scalia, whose replacement after his death early in 2016 resulted in Senate Majority Leader Mitch McConnell blocking President Obama’s nominee, Merrick Garland.

“That means that I interpret the constitution as a law, that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it,” she said.

Jeffrey Toobin, legal analyst for CNN and The New Yorker , told NPR Thursday morning that while several Supreme Court nominees have called themselves “originalists” since Scalia in 1982, “she may be the first one to actually mean it… .” 

Barrett told the committee, however, that she is not a carbon-copy of her mentor.

“If I were confirmed, you’d be getting Justice Barrett, not Justice Scalia …,” she said. “I share Justice Scalia’s philosophy, but I never said I agree with him on every issue.”

She did give Democrats some hope in not ruling out the question of recusal from votes on next month’s election and on the ACA ruling, but again declined to answer Sen. Kamala Harris’, D-Calif., question on whether she believes in climate change, because of the potential for a case coming up before the court. [Republicans had singled out Harris, the Democratic vice presidential candidate,  for what they considered aggressive questioning in Justice Brett Kavenaugh’s Judiciary committee hearing in 2018.]

Committee Republicans praised Barrett as a justice who will inspire young conservative women and girls the way Justice Ginsberg inspired young liberal women and girls.

“This is the first time we’ve nominated a woman who is unabashedly pro-life,” Graham said.

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