Republicans Can Confirm Kennedy’s Successor Without Democratic Votes

Democrats are on losing end of long power struggle over Senate filibuster rules


Judge Neil Gorsuch, left, is sworn in as an associate justice of the Supreme Court by Justice Anthony Kennedy, right, as President Donald Trump watches, on April 10, 2017.
Judge Neil Gorsuch, left, is sworn in as an associate justice of the Supreme Court by Justice Anthony Kennedy, right, as President Donald Trump watches, on April 10, 2017. PHOTO: CARLOS BARRIA/REUTERS

WASHINGTON—Justice Anthony Kennedy’s retirement puts Democrats on the losing end of a yearslong power struggle over the Senate’s filibuster rules.

When the Senate votes this fall to fill Justice Kennedy’s seat, only a simple majority, likely 50 votes in this case, will be required to confirm Mr. Trump’s pick.

Historically, Senate rules required a supermajority—60 votes when all members are present—for legislation and presidential appointees to cabinet positions and other high level roles. But Senate Republicans last year eliminated the filibuster for Supreme Court picks, after Democrats did the same in 2013 for lower-court judges and executive-branch posts.

Democrats knew in 2013 that their power play could come back to haunt them, as their Senate majority could eventually evaporate. Nevertheless, most remain raw today about the fact that Mr. Trump was able to place Neil Gorsuch on the Supreme Court with support from fewer than 60 senators—and only because the Republican majority didn’t allow a voteto fill the late Antonin Scalia’s seat when he died in 2016, during Barack Obama’s presidency.

“For us, on this side, it was a humiliation,” said Sen. Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, which will consider Mr. Trump’s pick to replace Justice Kennedy. “It is carved deep into our memory.”

The majority party can change Senate rules with a simple majority, and Democrats in 2013 eliminated filibusters for most presidential nominees because they said Republicans blocked Mr. Obama’s judicial appointments at an unprecedented rate. Former Sen. Harry Reid (D., Nev.), then the majority leader, engineered the rules change with a parliamentary maneuver so controversial that it is often called the “nuclear option.”

Justice Kennedy’s Retirement Sent a Jolt Through Washington

Justice Anthony Kennedy announced on Wednesday, June 27, that he will retire after 30 years on the Supreme Court. The Wall Street Journal’s Gerald F. Seib explains the reaction. Photo: Getty

When the Democrats lost the chamber in the 2014 elections, Republicans saw no need to retaliate immediately because Mr. Obama was still in the White House. But Senate Republican Leader Mitch McConnell’s decision to block confirmation of Mr. Obama’s Supreme Court nominee, Merrick Garland, until after the 2016 election gave Mr. Trump the power to fill it.

When the Democrats filibustered Mr. Gorsuch’s nomination last year, Senate Republicans voted to remove another element of the minority party’s power to exert influence in the chamber, eliminating filibusters on Supreme Court nominees. That paved the way for the swift elevation of Mr. Gorsuch to the high court.

Mr. McConnell had foreseen such a day. In 2013, as minority leader he warned Democrats that both parties could change the Senate rules.

“If you want to play games, set yet-another precedent that you’ll no doubt come to regret. I say to my friends on the other side of the aisle: You’ll regret this,” he told Democrats on the Senate floor, “and you may regret it a lot sooner than you think.”

Write to Joshua Jamerson at

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