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The Nuclear Debate You Aren’t Following
You would think Senate Republicans would be focused on how to wield their soon-to-be acquired majority status, not plotting how to cede power back to the Democrats. However, a sizable minority of Senate staffers is proposing we do just that.
It all started — as most rotten things do — with Harry Reid. One year ago, he took “the nuclear option,” abolishing years of Senate rules by lowering the vote threshold for ending filibusters on nominees to any post but the Supreme Court from the traditional 60 to a mere 51.
Citing Republican “intransigence” — read: using the same tactics the Democrats employed in 2003 against nominees such as Miguel Estrada — Reid and a coterie of Democrats who had never served in the minority “broke the rules to change the rules.” That is, they did not follow the Senate rule that requires 67 votes to change the rules; they did so with a bare majority.
Now, with Republicans slated to take control of the Senate, the first order of business is how to treat future nominees under the new Senate leadership. Should Sen. McConnell now respect the old precedent of 60 votes, or should he continue treating the 51 vote threshold as the operating rule?
Why is this so important?
First, it’s a clue to how McConnell will operate as majority leader. Right now, we don’t know if McConnell will run the Senate like Reid, changing the rules whenever it suits him, be the ultimate “institutionalist” and revert to the old system, or will opt for the same rules Reid worked under without changing others.
Most outside observers acknowledge the Democrats have acted in bad faith and have done done nothing to earn Republican magnanimity now that they are out of power. However, there are no timeless axioms — per Hamilton in Federalist 31 — that determine Senate rules. It is far more helpful to think of Senate rules as battle tactics rather than battlefield ethics: they are not not to be changed lightly, but are not inflexible, either. Should McConnell opt for a third way, look for him to de-emphasize process and instead talk about the substance of what he is trying to preserve in this specific context. He’ll try to prevent any slippery slopes from forming, in other words.
Second, it will tell us how the Senate will treat its other duties. The institutionalists have been saying that — once the rules are compromised on judicial nominees — SCOTUS and legislative filibusters will follow suit. Words like “unconstitutional” and “originalist” are thrown around by the institutionalists as rhetorical devices meant to make them out to being principled conservatives.
In fact, this is a question of procedural vs. substantive claims of injustice. The institutionalists favor preserving a procedural difference between the House and Senate that upholds the latter’s non-majoritarian character. The pragmatists respond that that character stems from the Senate’s central tradition of comity, which is best addressed by taking a more flexible, less-sacrosanct attitude toward tradition. No set of rules will be respected unless they are agreed upon in a sober, bipartisan fashion, rather than birthed by crisis, as has been done under years of Reid’s corrosive leadership.
The answer is not blind adherence to rules detached from any sort of moral bearing. Tradition and circumstance should shape Senate rules and my advice to McConnell is to tread lightly while changing any rules, judging changes both on their institutional merits and by how they would benefit the GOP majority in the short and long runs too.
Third, this is a matter of today but also tomorrow. McConnell has a choice: on the one hand, he could put the vote threshold back up to 60 votes, thereby making it harder to appoint conservative judges in two years when the White House is (hopefully) back in GOP hands; on the other hand, he could rely on alternative institutional checks such as the Judiciary Committee’s power to keep bad nominees under wraps.
It’s also worth noting that any unilateral move by Republican leadership will mean nothing if Democrats take the Senate and retain the White House in two years. At the same time, it will also mean a lot, due to the infinitesimally small chance the GOP has at least 60 votes after 2016. Getting our judges in when the White House flips is a top priority for undoing the wreckage of the Obama years, and we need to be sure not to do anything that impedes that.
I fall squarely on the side of the pragmatists who want this issue to be resolved quickly and without acrimony. A civil war on the GOP side about this would be foolish considering the momentum we have after the election. Reid didn’t realize he gave us a gift to confirm our judges while not needing to compromise our own principles of abhorring changes to the Senate rules for prudential reasons.
That said, we are likely to end up with a bare majority in the Senate in 2016 and the federal judiciary is a jump ball right now. The parties have become better than ever at sorting out the judges they want to nominate and being able to appoint judges is one of a president’s most lasting impacts. Reverting to the old rules now that we’re in power would mean giving up our ability to match the awful judges Reid has put up in recent months with worthy conservatives. If we were to play under one system with two rules, the Democrats would get to appoint Ginsburgs to the lower courts while we would have to content ourselves with unknowns and (worse yet) David Souters.
The stakes are high, but we don’t have to mess this one up. We should take the gift Reid gave us and move on to the business the American people elected Republicans to do.
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I think they should just leave the rules be and see how long it takes for the press and the Democrat minority to come up with pretzel logic for the rules to change back. Perhaps the (R)s could even be bipartisan and praise the wisdom of Harry Reid for the changes.
I’m with Eustace – there needs to be a social penalty exacted for breaking the “Nuclear” threshold and the people who need to pay it are soon in the minority. The real question is, “what should happen when a group of people tosses a social convention that has been in place for longer than anyone can remember merely for short term gain?”
The world didn’t end when they did it, there was no backlash and since the threshold has been breached, I would argue that they press forward with more changes.
When the news media and Democrats (but I repeat myself) complain merely show the Youtube videos of the Democrats praising the change earlier.
Until 1975 the filibuster threshold was 2/3rd – 67 votes instead of 60. I say restore that for a few years.
Keep the Reid rules in the name of constancy. And let’s get the Republicans to pass pro-choice legislation.
That’s essentially my position. We bear only criticism that can be described as “friendly fire” on this issue. The Senate staffers who like the old filibuster rules play a game that is increasingly affected by circumstances that operate outside their Senate bubble. There may come a time when the parties agree to bipartisan reforms that restore previous rules. But that time is not now and that will come from magnanimous Republicans who have the high ground here, not weak Democrats.
Thanks for the comments Instugator. I agree with your first paragraph. However, I would not press forward with more changes. They make zero sense right now. If in 2017, the Democrats attempt to filibuster a SCOTUS nominee put forth by a GOP president with a GOP Senate, you might have me on board. However, right now that’s picking a fight the public won’t understand well and did not vote on in November.
MFM, my gut tells me that based on a narrow band of competitive Senate elections keeping the parties between the 40 yard lines (60 votes in 2010 being the Democrats high water mark recently, while 55 was the GOP high water mark in 2005) that would not reflect any realistic employing of the filibuster. But I suppose you mean to reinstate the 67 vote filibuster across the board, not just for judicial nominees. That would make the Senate a more majoritarian body than currently, but I doubt that individual senators would give up their power when in the minority so easily. What was so shocking was when Reid abolished the 60 vote threshold for judicial filibusters it was an implicit assumption by the Democrats that the other Senate rules and procedures such as the committee process had no value any longer. It was end of the day, party line votes based on a new role of the Senate which was to be the White House’s main rubber stamp from 2009-11 and then its shield from 2011-15.
Tongue in cheek? Or is the cynicism already setting in?
You have not been reading my “pro-choice” conversations.
http://ricochet.com/pro-choice-republicans-and-the-art-of-war/
http://ricochet.com/pro-choice-republicans-asset-forfeiture/
Iwc thanks for both of those posts. I agree with both scrutiny over civil asset forfeiture laws and also a freedom agenda based around affirming the moral foundation of the free economy. There is a natural right for people to set the terms under which legitimate employment/services are rendered, and it is up to the government to justify why it is infringing on the people’s presumption of freedom in all dimensions. In essence, it is acknowledging what is pre-political and what is not.
As long as the Dems hold the White House and the Republicans hold the Senate, it works to the Republicans’ advantage to have a filibuster of judicial nominees and other appointees. All it does is make it harder for the President to get anyone approved.
McConnell should support a return of the filibuster for this Congress. If the Presidency changes parties in 2016 and if the Republicans retain control of the Senate then, then would be the time to eliminate the filibuster.
I’m with Tom. Much as I want to punish the Democrats for it, I worry about wasting the opportunity. After all, with Obama, there’s no chance that anything coming from the nuclear option will actually become law.
It might be worth it, therefore, to use these two years as a setup for the 2016 Senate. By going back to regular order, and being ostentatious about generosity and bipartisanship, it will take away the all-too-predictable accusations of “obstructionism” that the Democrats will surely throw.
You’re not going to get much done anyway, so why waste it?
Right. If McConnell restores the filibuster right now, he’s restoring a 60-vote threshold for Obama’s nominees, and I don’t think we need object to that. It’s only ceding power if we assume it must be permanent.
67 or the Reid Rules.
67 would best protect the Filibuster.
Keeping the Reid Rules would be Payback.
Nope. We are the Bad Guys no matter what. This kind of thing is seen as Weakness.
The unreasonable party always wins.
John Hinderacker addressed this in the PowerLine podcast. He thinks we should restore the 60 vote threshold because he doesn’t trust the squishes in the GOP caucus to stay united. He thinks Obama could get 51 votes even though the GOP has the majority now. So he wants the 60 vote threshold to keep Susan Collins, Lisa Murkowski, and Lindsay Graham in check. I think that’s a dumb idea. Keep the 51 vote threshold for now in case we get the White House in 2016 and bottle up any Obama nominees in committee so they never come to a vote.
If we restore it now there’s absolutely no reason we can’t go back to 51 if we get the White House. The optics of refusing to vote on a nominee are, legitimately, worse than voting against a nominee.