WASHINGTON, November 22, 2013 — Senate Democrats went “nuclear” on Thursday; they struck down a centuries-old Senate rule that protects the filibuster as a procedural tool. The move significantly weakened the minority party’s power in the upper chamber and all but ensured that partisan political hostility will worsen in the coming months.
The so-called nuclear option eliminates the requirement for a 60-vote majority to confirm most presidential nominees, exempting Supreme Court nominees.
Former Senator Trent Lott, R-Miss., first coined the term over a decade ago to highlight the drastic implications of changing such a basic rule.
“The American people believe the Senate is broken, and I believe the American people are right,” Senate Majority Leader Harry Reid said in defense of his party’s power play. “It’s time to get the Senate working again.”
Reid himself swore publicly in 2008 that he would never invoke the nuclear option, claiming that it would usher in a “black chapter in the history of the Senate.” Indeed, as Paul Kane wrote in the Washington Post, “the rule change represents a substantial power shift in a chamber that for more than two centuries has prided itself on affording more rights to the minority party than any other legislative body in the world.”
The Senate has toyed with the idea of scrapping filibusters in the appointment process for years. As far back as 1841, the threat of the nuclear option proved effective when Kentucky Senator Henry Clay couldn’t get his bank bill past a stubborn Democratic minority.
In the 1990’s, a small group of Democratic senators that included Edward Kennedy tried in vain to curb filibusters. In 2005, it was the Republicans who were itching to pull the trigger on the nuclear option when Democrats held up President George W. Bush’s judicial nominations.
Then-senator Barack Obama spoke out against Republican threats at the time, though he endorsed the Senate’s decision on Thursday.
The vote to push the nuclear option through was split 52-48, with three Democrats siding with Republicans. Veteran Sen. Carl Levin of Michigan was among those dissenters, and he had harsh words for his Democratic colleagues.
“If a Senate majority demonstrates it can make such a change once, there are no rules that 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,” he said on the Senate floor after the vote was counted.
Senate Republicans have most recently exercised their right to filibuster presidential nominations by blocking three of President Obama’s appointments to the D.C. Circuit Court of Appeals. While all judicial appointments affect policy, the D.C. Circuit Court is widely considered the second-highest court in the nation because it decides matters of government regulation, among others.
Senate Minority Leader Mitch McConnell reminded the public that the Senate has thus far confirmed 215 of Obama’s judicial nominees, rejecting only two. That’s a far cry from the grim picture of gridlock Senate Democrats attempted to paint in the wake of their controversial decision.
In the short run, the nuclear option will allow Obama to put the remainder of his picks in place with ease. In the long run, it will fundamentally change the way the party in power imposes its will in Washington.
The rule change protects all executive appointments from filibuster, from agency heads to the State Department’s second tier, but the full brunt of its impact will soonest be felt in judicial appointments. Without the ability to filibuster nominees, the minority party will have little control over who populates the federal bench, an enormously important third of the government in which the policies of the legislative and executive branches are examined on their merits.
Checks and balances were baked into the nomination process cake because all federal judges had to placate the Senate, where both parties had a voice. Now, the president has a virtual guarantee that his picks will cruise to confirmation no matter how far left or right they lean.
The invocation of the nuclear option has drawn comparisons to FDR’s 1937 court-packing plan, in which the president proposed expanding the Supreme Court so that he could secure additional nominations for himself. At the time, the high court was consistently striking down his New Deal legislation. Sitting justices and lawmakers on Capitol Hill roundly denounced Roosevelt’s plan, and it soon died in Congress.
But the short-lived proposal remains a historical highlight because of its momentous threat to the integrity of the American legal system.
While masked in different language, the nuclear option could prove to be a similar challenge to the democratic hand that has always filled our courts. Obama now has a free pass to choose the judges that will make up the federal bench, all of whom serve for life. Because all of his legislation must survive the courts intact to endure, the Senate’s maneuver may prove to be a boon to what’s left of his second term agenda.
What’s more, if another Supreme Court seat opens up before 2016, little now stands in Reid’s way if he wants to direct his leadership coterie to extend the nuclear option. Obama could then elevate virtually any qualified candidate to the high court regardless of his or her far-left stance, tipping the balance of the bench for years to come.
In a broader sense, the Democratic rule bending sets a dangerous precedent for the party in charge. Their unabashedly partisan power grab tested the political waters for this type of manipulation; today, it may be the nomination filibuster, tomorrow, it could be cloture, or rules dictating the passage of legislation, or worse.
Procedural rules only carry legitimacy so long as they are universally respected. If moving inconvenient hurdles in the parliamentary procedure becomes the norm, then in theory, the entire body of rules becomes optional.
“It’s a sad day in the history of the Senate,” McConnell told reporters on Thursday. “[T]he Democratic playbook of broken promises, double standards and raw power — the same playbook that got us Obamacare — has to end. It may take the American people to end it, but it has to end.”
In unusually pointed words for the Kentucky senator, he then warned the opposition, “You’ll regret this, and you may regret it a lot sooner than you think.”
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