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How to Stop Worrying and Learn to Love the Nuclear Option
The Senate deploys the nuclear option. In tomorrow’s Wall Street Journal (online now), my old friend Sai Prakash and I defend the constitutionality of the Senate’s decision to end the filibuster for Supreme Court nominees. We conclude: “Senators should stop worrying and learn to love the nuclear option.”
Democrats are crying foul, and Republican “institutionalists” have been expressing their regrets. The Democrats had every right to try a filibuster, a political tool with deep Senate roots. But the Republicans also had every right to abolish the filibuster for Supreme Court nominations. In 2013, Democrats under the leadership of Harry Reid made the same change with respect to all other appointments.
When Republicans made clear they would take the next step, Minority Leader Chuck Schumer said it was somehow a “bigger mistake” than the one the Democrats had made in 2013. Delaware’s Sen. Chris Coons called it a “tragic” choice. Only three Democrats dissented from Mr. Reid’s effort in 2013—and neither Mr. Schumer nor Mr. Coons was among them. The shoe always pinches when it is on the other foot.
But Republicans had more than revenge on their side; they have the Constitution. Article II, Section 2 creates no special vote threshold for nominees. By contrast, it explicitly requires “two thirds of the Senators present concur” to approve treaties. The Founders never constitutionalized the filibuster; the first one occurred in 1837. Congress managed to reach fundamental decisions—the creation of the first departments, the proposing of the Bill of Rights, the establishment of Hamilton’s national bank—without it. No filibuster was necessary then to secure a senatorial consensus. Nor, as the Gorsuch conflict demonstrates, can a filibuster today heal partisan polarization.
But Ricochet-ers: is this a move that Republicans will regret? Are we to worry about the decline of institutional checks on the-majority-rules democracy?
Published in Law, Politics
Yes, I’m worried about the future checks and balances. What will the evil Democrats do with unlimited power and no conscience?
No need for regret; if, when, the Dems get power they would do the same. No use regretting the inevitable.
Orrin Hatch:
If the Democrats are “crying foul,” they have no one to blame but themselves.
When even Susan Collins and John McCain are tired of the Democrats’ [redacted], you know they’ve gone too far.
Democrats already showed that they had unlimited power, not subject to the checks and balances of the filibuster when they got rid of the filibuster for all other appointments.
Not only do I not regret it, I expect to enjoy it even more when the filibuster is killed entirely. I hope our side figures it out first. Democrats use all legal tools available to advance their agenda, if they limit themselves to the legal tools at all. It’s not an accident that “By Any Means Necessary” is a leftist mantra. We should not refuse the legal tools available to roll back their agenda, in the vain hope of “bipartisanship” or “collegiality”. Those are mere rhetorical tools the left uses to guilt our pols into going along with their wishes.
Yes, we should worry about the decline of institutional checks but the Republicans have to use whatever tool is in the toolbox, even if it’s a sledge hammer. I’m more concerned that the GOP will lose the majority in 2018. If that happens, Gorsuch might be the last conservative SC appointee for a very long time.
John,
For once we are in full agreement. We need not just tworry about some distant possible future scenario. We must worry about the immediate impact of losing Gorsuch. There isn’t anyone more qualified or less combative. It won’t get any better than Gorsuch. The Court is hanging by a thread. Gorsuch will keep it from going over the edge. We’ll need another nomination to really stabilize it.
As for the change. I think passing a Nuclear Arms Control Treaty without the constitutionally required 2/3 majority is a far more dangerous precedent. If you can do something patently unconstitutional by changing one word, not calling a Treaty a Treaty, it is a disgusting display of contempt for the Constitution. Much, much more ugly.
In this change on the filibuster, we lost a tradition that was harmonious with the spirit of good democratic government. It was left wing intransigence that forced us to do it. You can’t maintain this kind of rule by unilateral good behavior.
That’s the way the cookie crumbles.
Regards,
Jim
There aren’t checks and balances anymore. The three branches are a cabal to increase federal power at the cost of the people and the states.
The filibuster hasn’t prevented radical, far left jurists from taking the bench, but has prevented good judges from being seated. Ending the filibuster won’t make it easier for the left to do what they’ve already been doing, but it will help republicans put in jurists who are faithful to the Constitution, even if they are inclined to increase federal power. That’s another battle . . .
What do you make of the common argument, expressed by @jlock today, that the filibuster is a necessary balance to the also non-Constitutional fact of political parties?
What is the history of political parties? Domestic political alliances were not new to Western politics when America’s founders wrote the Constitution. If Washington loathed them, he yet could not have been surprised by them. Did the founders not anticipate political parties, even if they did not prescribe around them specifically?
whoa whoa whoa, I never said anything like that. You said the filibuster wasn’t designed by the founders in the constitution and I said neither were political parties: but here we are.
My point is more when do we decide something needs fixing when the best maxim for an unwieldy machine like government is:
If it ain’t broke, don’t fix it.
I would say the Founders certainly did design our constitution to deal with political parties (called “factions” back then). Specifically, our elections are almost entirely based on plurality thresholds, not majority thresholds. This disadvantages parties that do not or cannot cooperate, as parties must be big enough to be “first past the post”. This is why we have a two-party system, a result clearly anticipated by the founders.
Leftists and progressives have been trying to water this down into a European-style multi-party disaster by introducing run-offs and non-partisan electoral systems wherever they can get away with it. This is really bad for our polity.
I’d say they definitely had it in mind, noting the Federalist papers written by Madison. But more towards the inevitability of factions (as you deftly noted) while hoping to avoid the intractable mess of party politics. To quote Prez #1 (who is frighteningly salient currently)
Indeed. But they didn’t just sit back and bemoan that inevitability, they wrote a constitution with super-majority requirements in strategic places (especially amendment), and the skeptics of the time made sure a bill of rights was spelled out, not just implied. What they didn’t foresee was the use of wartime conditions and war-like propaganda (war on poverty, war on crime, war on drugs…) to weaken respect for the negative rights model and enable “living constitution” incrementalists to gain a toehold. The “living constitution” is simply an end-run around the super-majority requirements for amendments. Yes, the constitution needs to change with the times, and our founders allowed for amendments to permit that. Restoring originalism in SCOTUS is a minimum condition for recovering our personal liberties, followed by a great deal of grass-roots work in the culture.
You’re absolutely right. On that constitution though — written in ways both philosophic and methodological that rubbed many the wrong way. I still don’t know the exact reason that spurned Franklin’s infamous quote about the nature of the constitution and newly-minted government: A Republic — if you can keep it!
Always good and enlightening to read your thoughts, Phil.
I agree. But let’s engage in a bit of a thought experiment for a moment.
Lets say it’s April 2021. In November 2020 Donald Trump was defeated in his reelection bid by Democrat candidate for president, Jeff Merkley (currently a Senator from Oregon). Also, the Democrats made large gains in the 2020 Senate elections (achieving a 54 to 46 seat majority) and House elections and hold majorities in both the House and the Senate. Essentially, with a President Merkley and control of both houses of congress, the Democrats are in the situation the Republicans are in now.
The Democrats propose legislation subject to the legislative filibuster and Republican Senators use the filibuster to prevent the legislation from coming to a vote.
The Democrats use the Nuclear Option and enact this legislation.
So, the filibuster has been entirely eliminated by the Democrats. If a conservative thinks that a 60 vote requirement in the Senate is important, it has become clear that relying on a Senate rule will not be sustainable, since a simple majority can Nuke it at any time.
But a Constitutional Amendment requiring 60 Senate votes on legislation would hold. In favor or not?
In other words, let’s say you wake up one morning and learn the filibuster is gone for legislation and nominations, for final passage and amendments to legislation.
Let’s say you are Republican US Senator representing Alabama or Missouri or Kansas or Texas.
Do you propose a Constitutional Amendment stating that all nominations made by the President require a three-fifths vote of the Senate in order to be successful?
Do you propose a Constitutional Amendment stating that all legislation must pass the House by a simple majority (unchanged) and a three-fifth vote of the Senate?
Would either 60 vote requirement be to the advantage of the conservative agenda or would a 60 vote requirement more likely benefit the Left?
My answer is that the 60 vote requirement would benefit the Left, even if the 60 vote requirement were “hard coded” into the Constitution and not vulnerable to Harry Reid’s antics.
Spiral,
Your question and answer are appreciated. However, you are reminding me of the issue I brought up. The 2/3 vote for a Treaty is hard coded into the Constitution. Yet the s@#nof$% went around it!! That to me is really really frightening. Gorsuch wouldn’t stand for this kind of cr@p. That’s why I think it is imperative to put him on the bench now instead of waiting around to see what happens next.
Nuke on.
Regards,
Jim
Concur. Conservatives, by definition, respect traditions. Progressives, as anti-conservatives, can always be expected to break tradition. So it has always been. The 60-vote cloture rule is only effective against conservatives, so it is right and appropriate for conservatives to jettison it.
And it was as easily undone. The problem is not that he took executive action. The problem is we’ve given agencies too much power to do the job of the legislature.
Agreements with nations can be made by the executive, by law, or by treaty. Maybe another method or two. Treaties are superior to laws. Treaties are subordinate to the Constitution. Executive orders are subordinate to both.
The executive has been making agreements as long as we’ve had a Constitution. What’s unusual is that it was used for an agreement of such importance.
Weird how its always been more a Democrat’s tool than Republican. But that also depends which party is more about state’s rights at the time in history, considering Strom Thurmond’s filibuster (longest in US history at over 24 hours) against the civil rights act of ’57.
The Dixiecrat has always been a strange political culture — one that I disagree with intellectually but find myself more comfortable with than leftist Democrats.
Hi John. Good post. I don’t believe we will regret it. If we lose the Senate in the 2018 mid-terms by at least two seats, yes, perhaps we will. If not, we have the potential to gain two or even (pipe dream, I know) three Constitutionalists on the Supreme Court by 2020. If the Supreme Court ended up with no Leftists other than Kagan and Sotomayor, then we would look back on this as one of the smartest political moves in a long time.
I don’t know which I should worry about more: the lack of checks in the future, or the partisan destruction of the process by the minority party that we currently have. Which do you prefer?
Agreed. It was only a matter of time before they did the same. At least something valuable is gained.
Also: finally Charlie Brown called Lucy’s bluff. She’ll get over it.
Sky,
I appreciate your attention to detail but I’m still sickened by it. Imagine if the Kenyan Constitution says it is unconstitutional to kill an elephant. Then the Kenyan Congress passes a law that says from now on Elephants will be called Zebras so we can merrily kill as many Elephants as we like. The Iran Deal was a massive multi-party Nuclear Arms Control Treaty. To call it anything else is just absurd. This is why originalism is so important. When you can bend language any way you want then anything is possible. Tom Cotton got this exactly and was ridiculed and attacked by his own party. As Trump says, Not Good!
Regards,
Jim
But it is consistent with originalism. The Constitution gives the legislature the power to create laws. Laws can be written to interact with foreign countries. This is not new. Think of laws for immigration or for importing and exporting goods.
Treaties are bigger than mere legislatively enacted laws. Congress can’t write a law (through the normal process) that violates a treaty even with executive consent. This is intentional. It is supposed to be so that treaties can be relied on by foreign governments and not be subject to fickle partisanship. But not all interactions with foreign governments requires a treaty. A treaty can only be undone the same way it was enacted.
This is why the republicans in Congress warned Iran that they fully intended to undo Obama’s executive orders. They wanted to make sure Iran knew that they could not rely on his executive orders to be binding on our government once Obama was out of office, or indeed if he just changed his mind on a whim.
Sky,
So basically you’re saying no worries. The Iran Deal is just a tale told by an idiot full of sound and fury signifying nothing. Why don’t I feel better then? Maybe it was something I ate.
Regards,
Jim
The reason why I pose the question of whether conservatives should support putting the three-fifths requirement in the Constitution is because much of the debate over the filibuster is based on the immediate situation, not on the abstract value of the a supermajority requirement.
It’s quite obvious to me that the Republicans did the right thing yesterday because the Democrats have shown that they were not going to allow any filibusters of Supreme Court nominees that they support.
But this means only that I oppose a double standard, one rule for Supreme Court nominees nominated by a Republican president (three fifths required to end debate) and another rule for Supreme Court nominees nominated by a Democrat president.
If the three fifths requirement were in the Constitution, neither side would be able to nuke it. But I would still oppose it on both legislative items and nominees.
I have heard some conservatives argue that the three fifths requirement is good because it prevents “mob rule.” I disagree. I think the three fifths requirement prevents conservative legislation more often than it prevents socialist legislation.
No. You should worry about Iran. Every day since 1979 you should worry about everything they are up to.
My point is that what obama did was legal and completely constitutional. We elected a radical communist with ties to domestic terrorism and he acted as predicted. We need to be more careful whom we elect.
I thought the article was going to be about North Korea. Of course the Republicans had to use it and while we can’t see the future we know that the next time the Democrats proposed nominees that do not believe that the constitution is the law of the land, that it is a living documents that follows media fads, and Republicans finally stepped up to do their job, the Democrats would abolish the filibuster. It was a tool for Dixiecrats and still is.