The question is when of course. Sen. Ed Markey (D-MA) said that Senate Democrats will reinstate the 60-vote threshold on Supreme Court nominations when they become the majority party. The Massachusetts Democrat made these remarks to MSNBC’s Katy Tur on Monday (via Talking Points Memo):
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," Markey told MSNBC's Katy Tur. "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 those people that are nominated, rather than just someone who just passes a litmus test."
This is quite the flip-flop from the overtures made by his colleague Sen. Tim Kaine (D-VA), who plainly said that Senate Democrats would nuke the filibuster rules for SCOTUS nominees should he and Hillary Clinton win the 2016 election. In the end, that didn’t happen. Clinton lost—big league. Democrats still seething over Senate Republicans blocking Merrick Garland, President Obama’s initial pick to fill the vacancy left by the late Antonin Scalia, and now dealing with indigestion over Trump’s upset win, threw a tantrum. They were the ones who embarked on this inane crusade to block an eminently qualified candidate, Judge Neil Gorsuch.
Gorsuch received praise from across the political spectrum, liberal legal scholars gave him their nods of approval, and Obama’s former solicitor general endorsed his nomination. The American Bar Association gave him its highest rating. And the confirmation hearings were nothing short of a home run. There was nothing principled about trying to block Gorsuch. There were no real reasons other than he was nominated by Trump that could justify this unprecedented level of obstruction on behalf of Senate Democrats.
After months, Democrats couldn’t grasp that Republicans won the 2016 elections. They sulked. They whined. they tried to filibuster Gorsuch—and it ended with Senate Republicans steamrolling your clown show by nuking the rules. They had miles of political cover to do so. To make things more nakedly partisan, Democrats didn’t filibuster the nominations of Clarence Thomas or Robert Bork–two men viewed as the spawns of Satan by the Left. Should Trump lose his 2020 re-elect bid and another vacancy arise, you really think that Democrats are going to entertain reverting back to the rules where they can put a stop to the Court’s rightward shift? No way.
Again, this was not necessary, as at least nine Senate Democrats initially said that Gorsuch should receive a hearing and a vote. Granted, the latter portion of that statement is subject to debate and interpretation, but their past remarks prior to the confirmation hearings seem to point to the fact that they wouldn’t engage in a filibuster. Even Sen. Pat Leahy (D-VT) once said that he doesn’t plan on voting for Gorsuch, but wasn’t inclined to support a filibuster. Well, the progressive Left is demanding all-out war against Trump and the pressure seemed to have taken its toll on most who seemed on the fence about the pending cloture motion on Gorsuch’s nomination. In all, the hypocrisy (as you all know) was thick on the Left in this filibuster game. And no, there’s no way Democrats are going to reinstate a rule that could obstruct a Democratic White House from putting a rabid lefty on the Supreme Court. That’s my bet. Right now, the Trump White House is preparing for a second vacancy. Justice Kennedy is rumored to be eyeing retirement.
Oh, and in case you were wondering, when Markey was running to fill the vacancy left by John Kerry, who became secretary of state in 2013, he didn’t, as Alexis Levinson noted, know that arithmetic was, in fact, math in a debate against Republican Gabriel Gomez.