After the Senate Republicans’ latest act of obstruction, Majority Leader Harry Reid may finally be ready to take a strong stand against the tactics that have broken the upper chamber of Congress. According to multiple reports, Reid is preparing to change Senate rules so that a simple majority — rather than the current three-fifths — could end debate on a bill. The reform, which has been frequently proposed but never enacted, is better known as the “nuclear option.”
Reid has long opposed such a move, but he appears to have changed his mind since Senate Democrats failed to overcome a Republican filibuster of Judge Robert L. Wilkins’ nomination to the United States Court of Appeals for the District of Columbia Circuit. Senate Republicans also blocked President Obama’s previous two nominees to the court, and are on pace to filibuster a record-shattering 45 executive nominees by the end of Obama’s second term.
Republicans have defended their obstruction by arguing that the D.C. Circuit has a light caseload, and therefore any attempt to fill the court’s three vacancies would amount to “packing the court,” as Senator Chuck Grassley (R-IA) has put it. That explanation rings false — the D.C. Circuit is not underworked, and “court packing” does not mean what Senator Grassley seems to think it does — and is basically a thinly veiled cover for the Republicans’ real objective: preventing the president from putting his ideological stamp on the courts, and his administration from operating at full strength.
Senate Democrats appear to finally be fed up. On Tuesday, The Washington Post’s Greg Sargent reported that Majority Leader Reid is “all but certain” to embrace the nuclear option, perhaps moving to change the rules as early as this week. Furthermore, it appears that Reid would have 51 votes behind him. As The Huffington Post reports, the GOP’s latest filibusters have convinced previously hesitant Democrats — such as Senators Barbara Boxer (D-CA), Dianne Feinstein (D-CA), and Chris Coons (D-DE) — that reform is now a necessity.
The GOP has responded to these threats by warning, essentially, that what goes around comes around.
“Be careful what you wish for,” Senator Grassley has said. “If the Democrats are bent on changing the rules, then I say go ahead. There are a lot more Scalias and Thomases out there that we would love to put on the bench. The nominees we would nominate and confirm with 51 votes will interpret the Constitution as it was written.”
This warning — that Republicans would take advantage of a 51-vote threshold when they find themselves in the majority — should not deter Democrats. All of the available evidence suggests that even if Reid backs off of his nuclear threat, Republicans themselves will change the rules as soon as they’re back in power.
Sure, it’s possible that McConnell and his caucus will suddenly reverse their historically unprecedented disregard for Senate traditions once they eventually gain the majority. But it seems much more likely that they will continue to do everything within their legal authority to push their own policies forward, while marginalizing Democrats. Weakening or killing the filibuster would be an obvious way to accomplish that.
There is some precedent for such a move; after all, the Republicans tried to exercise the nuclear option the last time they controlled the Senate.
In 2005, when Democrats blocked 10 of President George W. Bush’s judicial nominees — Bush was actually plagued by a far lower rate of obstruction than President Obama has been — then-Senate Majority Leader Bill Frist (R-TN) slammed the tactics as “unprecedented” and tried to change the rules. He was only stopped by a last-second deal from the “Gang of 14” — a bipartisan group of Senate moderates that made a temporary agreement that the seven Democrats would not vote to obstruct Bush’s nominees, and the seven Republicans would not vote for the nuclear option.
Don’t expect a similar agreement to stop them again. Of the seven Republicans in the “gang,” three — Senators Lincoln Chafee, Mike DeWine, and John Warner — are no longer in office. Another, Senator John McCain, has abandoned his erstwhile opposition to abusing the filibuster, and joined the rest of his caucus in blocking Judge Wilkins. And don’t hold out hope that Senator Lindsey Graham could pull his caucus back from the ledge — he is currently dedicated to blocking any and all Obama nominees until he gets the “truth” about the attack in Benghazi.
Some savvy political observers, such as Salon’s Brian Beutler, believe that Senate Republicans are intentionally goading Reid into weakening the filibuster, in anticipation of completely eliminating it once they return to the majority. Even if that is the case, it shouldn’t weaken Reid’s resolve. The majority leader’s choice between changing the rules now — giving the president a chance to do his job throughout his remaining years in office — and sitting on his hands, hoping that Republicans will play by the rules if they take control of the Senate, isn’t much of a choice at all.
Republicans have essentially left Reid with no option but to activate the nuclear option. And if he does, he may find that voters are quite willing to reward the party that finally changes the institution they have come to loathe so much.