The Nuclear Option

Posted on December 6, 2013. Filed under: Uncategorized |

By James Scott

The funny thing about the detonation of the nuclear option on Capitol Hill last month is that when the dust cleared, everyone was still standing. It’s the coming fallout that may be the most deadly.

The so-called nuclear option is a rule change backed by Senate Democrats to dislodge stalled judicial nominations by requiring only a simple majority of 51 votes, rather than the traditional super majority of 60 votes, for confirmation.

That the Democrats would tamper with the time-honored tradition of the filibuster had Republicans crying foul. “You will regret this,” warned Senate Minority Leader Mitch McConnell (R-Ky.). “You may regret it a lot sooner than you think.”

McConnell is right about that, of course. When the Republicans inevitably regain the majority in the Senate, do you think they’ll still be outraged? Do you think they’ll cling to their moral indignation and change the rule back? No.

This could be a good thing, really. It does at least partially eliminate the totally non-productive exercise in which the minority party can frustrate the administration by blocking virtually everything it tries to do, right down to the naming of judges.

The rule change applies only to nominations, so the Republicans still have the power to block any piece of legislation with filibusters, which can only be stopped with the aforementioned 60-vote supermajority.

It’s not like the Republicans wrote the book on intruding on the confirmation of judicial nominees. In fact, the Democrats were pretty much the strategy’s pioneers.

Many point to George W. Bush’s nomination of conservative Hispanic Miguel Estrada to the D.C. Circuit Court in 2003 as the start of it all. Democrats feared that it would be only a matter of time before Bush named Estrada to the Supreme Court. Instead of waiting for a high court nomination, the Democrats decided to filibuster to keep Estrada off the circuit court.

Things just devolved from there to the point where virtually all nominations were being blocked for no other reason except that they were proposed by President Obama. A President Romney probably would have fared no better.

In an op-ed published recently in the Desert News, former Republican Senator Robert Bennett of Utah recalled that back in the day the filibuster was never used to block judiciary nominations.

“That’s why Clarence Thomas, the most controversial appointee to the Supreme Court in recent memory, was able to be confirmed with 52 votes,” Bennett wrote.

Which makes us wonder what senators will be saying about today’s Senate ten or 15 years from now. Will this be the moment they point to as the beginning of the end of the filibuster and the transformation to a Senate ruled strictly by majority?

One of the only Democrats to oppose the nuclear option, Sen. Carl Levin of Michigan, worried that the Senate will one day be like the House, ruled at the whim of a majority that has no need to win minority votes and therefore no need to compromise.

“If a Senate majority demonstrates it can make such a change once, there are no rules which bind a majority, and all future majorities will feel free to exercise the same power, not just on judges and executive appointments but on legislation,” Levin said.

“Down the road, the hard-won protections and benefits for our people’s health and welfare will be lost,” he said.



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Gee, Obama just gave Iran a nuclear option too.

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