June 11, 2023

Ranking member Sen. Chuck Grassley (R-IA) listens as Sen. Tom Cotton (R-AR) speaks during a Senate Judiciary Committee business meeting to vote on Supreme Court nominee Judge Ketanji Brown Jackson on Capitol Hill, April 4, 2022 in Washington, DC. (Photo by Anna Moneymaker/Getty Images).

The Senate returned from a long spring recess Monday to the beginnings of a major fight. Senate Republicans have declared that the war over the federal judiciary is back on, even if it means breaking the essential Senate norm of respecting colleagues and acting with a minimum of decency toward them. They are already lining up to tell Sen. Dianne Feinstein to stuff it. The California Democrat asked last week to be temporarily replaced on the Judiciary Committee while she recovers from a health setback. Her absence has hindered the committee–and the Democrats–from doing their main job for the next two years: confirming Biden’s nominees.

Republicans, of course, realize that and now see that they can achieve their primary goal for the next two years–stopping Biden from getting judicial nominees. Feinstein’s request was blood in the water for the likes of the repugnant Tom Cotton, a Judiciary Committee member. The Arkansas Republican was the first out of the block to say he’d oppose the move, tweeting “Republicans should not assist Democrats in confirming Joe Biden’s most radical nominees to the courts.”

He was quickly joined in that opposition by Sen. Marsha Blackburn of Tennessee, who tweeted “I will not go along with Chuck Schumer’s plan to replace Senator Feinstein on the Judiciary Committee and pack the court with activist judges.” Ah, yes. Activist judges. Like those who have declared that they know more about drug safety than the Food and Drug Administration. That’s her excuse for stabbing her fellow committee member in the back.

Feinstein has been away from the Senate since early March, after hospitalization from a case of shingles. Her absence has created a major headache for Majority Leader Chuck Schumer and Sen. Dick Durbin, chair of the Judiciary Committee. With her absence from the committee, Democrats don’t have a majority on the committee and can’t easily advance President Biden’s nominees, which was basically the one job they had for the next two years.

After matters came to a head last week in the national news media, Feinstein requested that she be temporarily replaced on the committee with a fellow Democrat until she’s cleared by her doctors to return. That, however, is subject to the agreement of the whole Senate because that’s how committee assignments are approved. In the pre-McConnell days, it would have been done with unanimous consent by the Senate because that was just how it worked. Not anymore.

The quick response from the GOP probably has something to do with the return of McConnell after his long recovery and rehab from a fall that resulted in a head injury. Because when it comes to breaking the Senate, and the federal judiciary, McConnell has no equal. Cotton and Blackburn aren’t out there winging it without leadership’s approval; this is a McConnell ploy all the way.

Never mind that committee assignments have never been subject to partisan fights in the Senate. Each party conference decides among members who is going to be on which committee and those decisions are respected by the whole Senate. “You just don’t screw with a conference or caucus’ decision” on committee assignments, one longtime Senate aide told Politico. You do if you’re Mitch McConnell.

This sets up yet another filibuster fight. When Majority Leader Chuck Schumer asks for unanimous consent for another member to fill in for Feinstein, Cotton or Blackburn or any of the other assholes from the Judiciary GOP—and it has more than its share of them—will say “no.” Then Schumer will have to send it to the floor, where it will require 60 votes. That means finding 10 Republicans to help. There won’t be 10 Republicans to help.

At this point, Schumer could try to break the filibuster by invoking the so-called nuclear option, making a motion that a simple majority of 51 votes can be used to make committee assignments. That requires the presence of Vice President Kamala Harris to cast the 51st vote. It also requires anti-filibuster reform Senators Joe Manchin and Kyrsten Sinema to agree.

The other option is to continue to try to do judicial confirmations the way they did it last session, when the Senate was divided 50-50. That required Schumer to have extra votes. When the committee deadlocked on a vote for a nominee, Schumer had to schedule a vote to discharge the nominee from the committee and then votes to move that nominee to the floor. It significantly slows the confirmation process and, thus, the number of Biden nominees the Senate has time to get confirmed.

If Biden’s goal of remaking the federal judiciary is going to be realized, Schumer and the Democrats really only have one option: forcing the issue and getting another Democrat on the committee by whatever means necessary.


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