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A Magazine of Ideas

How to Clean Up the Senate’s Nuclear Fallout

Thursday, December 12, 2013

It would be a mistake for Republicans to perpetuate Senator Reid’s drastic changes to Senate procedures on nominations. Here’s a proposal for restoring the upper chamber’s deliberate and effective functioning.

The Senate was no longer functioning properly, a member of the majority party leadership argued on the floor of the World’s Greatest Deliberative Body, as a prickly minority single-mindedly thwarted the president’s appointment powers, thus abusing its role of advising on and consenting to White House nominations.

“To correct this abuse,” the member went on, “the majority in the Senate is prepared to restore the Senate’s traditions and precedents to ensure that regardless of party, any president’s judicial nominees, after full and fair debate, receive a simple up-or-down vote on the Senate floor. It is time to move away from advise and obstruct and get back to advise and consent.”

The minority party fired back, decrying the so-called “nuclear option,” in which the majority, with a single vote, would strip the minority’s ability to filibuster presidential appointees.

“The nuclear option,” a minority senator objected, “abandons America's sense of fair play ... tilting the playing field on the side of those who control and own the field. I say to my friends on the [majority] side: You may own the field right now, but you won't own it forever. I pray God when [we] take back control, we don't make the kind of naked power grab you are doing.”

By now, the sage reader has probably figured out that the former quote came not from Democrats currently controlling the Senate, but from Mitch McConnell, currently the Senate minority leader, back in 2005 when the GOP ruled the roost.

Likewise, the second quote emerged not from the mouths of the current Republican minority but from none other than Vice President Joe Biden eight years ago, when he was a mere senator in the minority.

Rarely has such hypocrisy been as starkly illustrated as in the last few weeks.

The Washington parlor game of throwing old quotes in the face of a craven pol now reversing course is as old as the District itself. But rarely has such hypocrisy been as starkly illustrated as in the last few weeks, as Republicans throttling President Obama’s executive and judicial nominees have channeled their inner John Calhoun (or is it Jimmy Stewart?), while Democrats behave as if they’ve just discovered that long-standing Senate rules — gasp! — deliberately slow the gears of government.

In this case, where Senate Democrats narrowly scuttled the use of the filibuster to thwart most executive and judicial appointments, and earlier this week confirmed the first nominee under the new rules there’s plenty of blame to go around. But the balance between the deliberate and the effective functioning of our upper chamber can only be reinstated by a measured, carefully considered, delicately constructed approach — in other words, the kind of calm, steady solution for which the Senate used to be known.

First, Democrats bear significant responsibility for the impasse. They were the ones who, in 2005, at the outset of President Bush’s second term, effectively initiated the practice of filibustering judicial nominees, thus triggering the first nuclear crisis eight years ago before the Gang of 14 (temporarily) resolved it. In their view, Bush’s nominees were too extreme to ascend the federal appellate bench, and even though a Republican president, House, and Senate had just been returned to office, they invoked their senatorial privileges to block them.

Among the stymied nominees: one Peter Keisler, a prominent D.C. lawyer and high-ranking Justice Department official whose prospective appointment to the influential D.C. Circuit Court of Appeals Democrats refused to act on.

Fast forward eight years to President Obama’s second term, when the GOP picked up where the Democrats left off by thwarting several of Obama’s nominees, most notably to the same D.C. Circuit at the center of the previous controversy. For this, thanks to the Democrats, there was ample precedent, and had the Republicans satisfied themselves with this tactic, the nuclear option may well have been averted. What’s sauce for the goose, after all, should be sauce for the gander.

However, Republicans took their role as the loyal opposition one step further, opting to filibuster a number of the president’s executive appointees as well. The GOP attempted or managed to block the nominations of Obama’s defense secretary, National Labor Relations Board chief, Consumer Financial Protection Bureau head, labor secretary, and several other key executive branch positions in a manner and with a frequency not before seen.

Democrats effectively initiated the practice of filibustering judicial nominees, thus triggering the first nuclear crisis eight years ago.

In total, during Obama’s first five years in office, Republicans have blocked 81 executive and judicial nominations, compared to the 38 that Democrats thwarted during President Bush’s two terms and the 23 that the GOP bottled up during the two Clinton terms. Of those, the liberal website Talking Points Memo estimates that 27 — one third — have been executive nominations, almost four times as many such appointments as Democrats blocked during Bush’s terms.

And thus it seems that these executive filibusters, not the judicial variety, were the proximate cause of, or at least the pretext for, Senate Majority Leader Harry Reid’s detonation of the nuclear option. It’s highly possible that, absent this executive blockade, the filibuster would still be intact.

But it’s not, and the reactions among activists on both sides of the aisle were fierce.

Liberals, of course, were overjoyed that Reid finally entered the launch codes after idly threatening to do so for years. “The political system changed its rules to work more smoothly in an age of sharply polarized parties,” the Washington Post’s Ezra Klein enthused. “A really big deal for the American economy,” Slate’s Matthew Yglesias predicted. And in a post entitled “For liberals, a long crusade finally pays off in reform,” the Post’s Greg Sargent quoted Senator Jeff Merkley (D-Oregon) as offering a “huge thank you to the leadership team.”

Conservatives, predictably, were apoplectic, with outrage emanating from everyone from McConnell, who called Reid’s move “a power grab in order to try to advance the Obama administration’s regulatory agenda,” to former Massachusetts senator Scott Brown, rumored to be mulling a Senate run in New Hampshire, who tweeted: “So much for a functioning US Senate. NE Dems all vote to change rules & over 200 years of history. Another reason for change in the Senate.”

So what happens now?

Many conservative activists have embraced the nuclear fallout, urging the GOP to employ the same brass-knuckle tactics when the party eventually retakes the White House. In an illuminating post entitled “How to Stop Worrying and Love the Nuclear Option,” the Judicial Crisis Network’s Carrie Severino argued that “Republicans must immediately make clear that they will take full advantage of the new rules when the tables are turned. That is the only acceptable position now that Democrats have crossed the Rubicon.”

But it would be a mistake for Republicans, if they’re fortunate enough to win back control of the Senate next year, to perpetuate Reid’s drastic changes. Imagine the goodwill the GOP could earn by vowing a return to civility and centuries-old Senate traditions. Specifically, Republicans should reinstate the filibuster on judicial appointments, while allowing it to lie dormant for executive nominations.

Why draw the distinction there?

Republicans took their role as the loyal opposition one step further, opting to filibuster a number of the president’s executive appointees as well.

Stymieing executive nominees unduly inhibits the president’s constitutional prerogative to staff his administration with officials of his or her choosing and interferes with the executive branch’s ability to conduct its constitutional business. When selecting candidates to fill roles within the same branch of government, the president deserves the opportunity to decide who fits best, subject to the advice and consent of the Senate. And because these appointments generally terminate when the president’s administration expires, their impact will generally be temporary.

By contrast, considering that Democrats initiated the practice of filibustering judicial candidates and Republicans have extended it, the concept has taken root in the American political psyche, for better or for worse. There is a certain logic to allowing the minority to preserve its right to thwart the nomination of a jurist who, per the Constitution, will hold a seat on the bench for life. The only way to prevent a determined White House from stacking a given court for the medium-to-long-term, as Obama and his Senate allies intend to do with the D.C. Circuit, is to stand on principle and mount a filibuster.

At the same time, a Republican Senate majority leader should limit the terms of that filibuster to require 41 senators to vote against cloture, instead of the recently abolished regime, which obliged 60 senators to vote for cloture. This would force every member of the minority party to explicitly and vocally stand up for their beliefs and explain to the American people why a given judicial nominee is too extreme to merit a lifetime appointment. This approach may also deter on-the-fence senators from filibustering, if they’re afraid to go on record in support of such a tactic.

Maintaining the filibuster ban on executive nominations while bolstering the requirement for filibustering judicial candidates would go a long way to restoring the balance of the Senate. In recent years, it has been hard to call our upper chamber “the world’s greatest deliberative body,” and Reid’s maneuver has made it even harder. But some common-sense steps could reinstate that reputation.

Michael M. Rosen, a regular contributor to The American, is an attorney and writer in San Diego. Reach him at

FURTHER READING: Rosen also writes “RX for R&D: Repealing the Medical Device Tax,” “The Right Way to Combat Patent Trolls,” and “Reversing Reverse Payments: The Actavis Decision.” John Yoo says “Reid's Filibuster Power Play Is a Blow to American Constitutional System,” while Norman J. Ornstein declares “Time to Stop the Senate Filibuster Madness.”

Image by Dianna Ingram / Bergman Group