Senate Majority Leader Mitch McConnell feels vindicated for successfully blocking Merrick Garland, President Obama’s choice to fill the Supreme Court vacancy for nearly a year. But Democrats aren’t likely to let such an aggressive move slide, and the payback could get ugly with other high-court vacancies likely during Trump’s first term.

Incoming Democratic leader Chuck Schumer, D-N.Y., is known for playing hardball so President-elect Donald Trump and Senate Republicans now have to carefully plot their next move in the high-stakes game of filling the critical lifetime post.

This week after the election, Washington is filled with talk that McConnell could up the ante on Democrats and go “nuclear,” changing Senate rules to require a simple majority instead of 60 votes to end a filibuster of a president’s high court pick.

Here are three other ways Republicans and Trump could turn the table on Democrats and make them rethink any plans to block Trump’s nominees and retaliate against McConnell:

Turn the Table on Dems on filibuster rules

Change the filibuster rules for Supreme Court nominees for the same amount of time, and not a day more, that the Democratic-imposed rule change for lower court nominees and other presidential appointments have been in place.

In 2013, Senate Majority Leader Harry Reid, D-Nev., decided to cut through GOP obstruction of President Obama’s lower court nominees and other appointments by going “nuclear” and requiring only a simple majority vote to confirm the nominations.

He left the 60-vote requirement to break a filibuster in place for Supreme Court nominees by arguing that the lifetime appointments are too important not to allow the minority party some way to block candidates they deem unworthy for the job.

John Yoo, a controversial former deputy assistant attorney general in the George W. Bush administration who authored the so-called Torture Memos after 9/11, on Thursday suggested a creative approach. Senate Republicans could “go nuclear” for only a limited time to prove to Democrats that changing Senate rules have repercussions while trying to ratchet back the battle lines to stop the tit-for-tat retaliation on other Senate rules. Both sides also acutely aware that ending the filibuster for presidential nominees can come back to haunt either party when its in the minority.

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“If I were a Republican senator I would say we should overrule the filibuster for Supreme Court nominees for the same number of years that Democrats overruled the filibuster for judicial appointments, for the exact same amount of time,” Yoo told a post-election forum at the Heritage Foundation Thursday. “Because otherwise … there’s just a ratcheting up effect … and you’ll never stop this derogation of the rules of the Senate, and you have to restore order.”

The way to eventually restore the filibuster is to create an incentive for both sides to step back and think about the turn-about and fallout when their own party is in the minority and what would happen to the Senate confirmation process over the long term if it isn’t followed, he said.

Former Attorney General Michael Mukasey at the same Heritage forum said Thursday that conservatives should support the Senate rule requiring 60 votes to shut down a filibuster.

It’s an important tool for the minority, he said, because the courts have greatly expanded their role, along with how many politically charged cases they will take, and justices and judges have become politicized in the process.

Issues that used to be resolved in the legislature, Mukasey said, are now being “handed off to the courts” who are saying, “bring us your biggest problems, no case too small.”

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Trump nominates Sen. Ted Cruz, R-Texas

While initially horrifying to Democrats, the move would have the dual effect of trying to heal old wounds between the two fierce primary opponents and removing Cruz from the Senate, where most of his colleagues revile him and would love to see him leave.

In addition, it would take Cruz off the top of the list of potential primary challengers come 2020 if Trump’s administration has been anything but great.

Cruz was Trump’s fiercest opponent in the GOP primary, and waited to endorse him until well after the convention. Even though Cruz eventually endorsed Trump and even said he voted for him, there’s enough lingering resentment between the two to fuel a Cruz challenge to Trump the moment he becomes vulnerable.

The two sparred during the debates, and Trump questioned Cruz’s marriage fidelity and rehashed a conspiracy theory that the Texas senator’s father was involved in the assassination of President John F. Kennedy.

“Appointing Ted Cruz to the Supreme Court would have an air of magnanimity … because his father having killed Kennedy and stuff,” conservative columnist Jonah Goldberg quipped during the Heritage forum. “But there’s also the fact that … there are a lot of senators who would like to get Ted Cruz out of the Senate.”

Cruz, who has argued cases before the Supreme Court and clerked for Clarence Thomas, is young, healthy and just as rock-ribbed conservative as Scalia.

A Cruz selection has the added advantage of playing upon Senate Democratic desires not to be forced to see have to deal with him on Capitol Hill.

Democrats could be motivated to confirm him, Goldberg said, so they won’t “have to see him in the cafeteria anymore.”

The plan comes with a likely deal-breaker caveat: “The problem is, I don’t think Cruz” wants the lifetime post, Goldberg added.

Trump names Sen. Mike Lee, R-Utah

Senators appointed for Senate confirmed posts in administrations historically sail through the confirmation process with only one notable exception: John Tower to be Secretary of Defense in the George H.W. Bush’s administration.

Lee made a list of 21 Supreme Court justice possibilities that Trump compiled and release with the help of the Federalist Society and other conservative groups. The unprecedented move of releasing a list of top high court picks – no other presidential candidate has done so in history – is widely credited with helping consolidate many influential conservatives around Trump’s candidacy late in the campaign.

“I imagine he would get readily confirmed and Republicans wouldn’t lose a seat in the Senate…and [Trump] could keep his promise to the conservative wing of the party,” Yoo said.

Trump included Lee, as well as his brother Thomas Lee, a Utah Supreme Court Justice, on the list of 21 potential high court nominees.

After news broke that his name was on it, the Utah senator immediately shot down the idea.

“Sen. Lee already has the job he wants which is why he is campaigning to represent the great people of Utah again this year,” Lee spokesman Conn Carroll told Politico back in September.

But Yoo and others at the forum signaled that Lee might be open to the idea after such a decisive Trump win.

Five things Trump could do to change Obamacare right away

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There’s a laundry list of things President-elect Donald Trump could do on his own to modify the Affordable Care Act, even if Congress gets hung up on exactly how to repeal and replace it.

While the Affordable Care Act is a lengthy piece of legislation, the Obama administration issued many more pages of regulations and guidance explaining exactly how it should be implemented. The new administration, under the direction of Trump, could amend or get rid of those directives as soon as it’s in place next year, and thus significantly alter the law without having to wait for Congress.

Additionally, the Department of Justice is involved in several ongoing disputes involving the healthcare law and some of the payments it lays out for

11/11/16 12:01 AM

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