POLITICS
10/28/2016 04:24 pm ET Updated Oct 28, 2016

Tim Kaine: Democrats Will Nuke Filibuster For Supreme Court Nominees If GOP Won't Cooperate

Senate Republicans are already indicating they'll block any potential nominee put forward by Hillary Clinton.

COLUMBUS, Ohio ― Vice presidential candidate Tim Kaine warned on Thursday that his party would move to eliminate rules allowing a minority of Senate Republicans to block Supreme Court nominees should they refuse to consider those nominated by a future president Hillary Clinton.

Kaine was not predicting Clinton’s victory, though, during a sit-down interview with The Huffington Post at the Land-Grant Brewing Company, he expressed confidence with where the election stood 11 days out. Instead, the Virginia senator was responding to recent remarks from Sens. John McCain (R-Ariz.) and Ted Cruz (R-Texas) indicating that they were prepared to leave the current Supreme Court vacancy open should Clinton end up winning, leaving only eight justices on the bench.

“I was in the Senate when the Republicans’ stonewalling around appointments caused Senate Democratic majority to switch the vote threshold on appointments from 60 to 51. And we did it on everything but a Supreme Court justice,” Kaine said. “If these guys think they’re going to stonewall the filling of that vacancy or other vacancies, then a Democratic Senate majority will say, ‘We’re not going to let you thwart the law.’”

Democrats, Kaine ultimately predicted, “will change the Senate rules to uphold the law.”

Kaine’s remarks add some teeth to threats being made by Senate Minority Leader Harry Reid (D-Nev.) this week. The Nevada Democrat, in an interview with Talking Points Memo, said that his party was prepared to change the rules of the Senate to eliminate GOP ability to block Supreme Court nominations should Republican intransigence continue into a prospective Clinton administration.

We will change the Senate rules to uphold the law. Sen. Tim Kaine (D-Va.)

In the scenario Reid outlined, the Democrats would take back control of the Senate but still fall below the 60 votes needed to get a Supreme Court nominee confirmed. At that point, the party would use a simple 50-vote majority to change the rules of the Senate so that it could consider and confirm a Supreme Court nominee with that same 50-vote-majority.

The party did as much for certain lower court nominees back in 2013. But it notably stopped short of changing the filibuster rules for confirming justices to the highest court, under the logic that that court was more sacrosanct than the others.

When Republicans took control of the Senate in 2014, the threshold for confirmation became less relevant. When Justice Antonin Scalia passed, GOP members refused to even consider President Barack Obama’s replacement, Merrick Garland, let alone hold a vote on his nomination.

In recent weeks, McCain has said that he would continue refusing to consider replacements for Scalia should Clinton win, while Cruz has argued that there is precedent for the Supreme Court operating with just eight members.

Kaine predicted that the election results would ultimately change the calculus of his Senate Republican colleagues (though it’s worth noting he spoke before news broke that the FBI was re-investigating some Clinton-related emails). Ultimately, Kaine predicted, there is “still a significant likelihood that Merrick Garland will get a vote before the end of the year.” As for Cruz’s logic, he had some quibbles.

“Ted Cruz I think is being slightly disingenuous,” he said. “The Constitution doesn’t set the size of the Court. It sets a maximum, I think, of 15. But since the Judiciary Act of 1869, it’s been a nine-member court. That’s what the statute says. We take an oath to uphold the law, that’s what we’re upholding. Congress could change it, if Congress wanted to and had the votes, but Congress won’t. So until Congress does, that’s the size of the court.”

Check back for the full interview with Kaine later on The Huffington Post. 

Video produced by:

Senior Producer: Sharaf Mowjood; Producer: Omar Kasrawi; Editor: Adriane Giebel; Director of Photography: Chelsea Moynehan; Cameras: Dan Fox, Shane Handler; Audio: Mike Caravella 

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