On Thursday, Senate Democrats finally went "nuclear," voting 52-48 to end the filibuster for most judicial nominations and executive-office appointments. This is a big deal for the arcane parliamentary procedures that govern the Senate (the vote essentially re-interpreted the Senate's Rule 22), but it will also change the balance of power in the federal government, in sometimes unpredictable ways.
Now, when a president nominates a cabinet secretary or federal judge, a simple majority of 51 senators — not 60 — are needed to proceed to an up-or-down vote. Senate Majority Leader Harry Reid's (D-Nev.) drew a line in the sand for Supreme Court nominees, though many observers expect that line to be erased if ever challenged in practice. The filibuster remains for votes on legislation.
But the effects on the federal judiciary aren't why this procedural maneuver was named after atomic armageddon — it's the threat of nuclear fallout. "The reason it's called the 'nuclear option' is because the minority has always threatened to 'shut down' the Senate using other procedural tricks if it happened," notes Jonathan Bernstein notes in The Washington Post.
"President Obama will get a short-term lift for his nominees, judicial and otherwise," says Jonathan Weisman in The New York Times, but the cost could be "an era of rank partisan warfare beyond even what Americans have seen in the past five years."
For the foreseeable future, Republicans, wounded and eager to show they have not been stripped of all power, are far more likely to unify against the Democrats who humiliated them in such dramatic fashion.... And legislation, at least for now, is still very much subject to the filibuster.... Republican senators who were willing to team with Democrats on legislation like an immigration overhaul, farm policy, and a reauthorization of the Violence Against Women Act will probably think twice in the future. [New York Times]And in fact, Republicans reacted furiously to the rule change, threatening to make Democrats pay when they are in the minority. That won't be until 2015 at the earliest. In the meantime, "will GOP senators retaliate by blowing up every remaining bridge in sight?" asks Sarah Binder at The Washington Post's Monkey Cage blog. Well, as Reid has "said on more than one occasion, how much worse can the Senate get?" Binder continues:
As Greg Koger has suggested, senators are already exploiting the least costly avenues of obstruction. To be more obstructive would likely begin to impose more costs on the minority that they might not want to absorb. Hanging around the chamber to cast votes just to slow down the majority might not be worth it for the minority. And at some point, the risk of being tagged as obstructionist could hurt GOP senators in 2014 (though this remains to be seen of course). [The Monkey Cage]If Republicans are angry, the Washington centrists are in mourning. "Today's historic change to Senate rules escalates what is already a hyperpartisan atmosphere in Washington, which is already preventing Congress from addressing our nation's most significant challenges," lamented the Bipartisan Policy Center, in a statement from former Sen. Olympia Snowe (R-Maine) and former Rep. Dan Glickman (D-Kansas).
What do supporters of nuking the filibuster say? One major argument is that the Senate has been an ugly, partisan battlefield for a while, and Democrats are taking the only offensive maneuver available to them.
Lamentations about the loss of bipartisan comity in the Senate "willfully overlook that we have long since entered an era of total partisan warfare that would be difficult to escalate any further," says Alex MacGillis at The New Republic. "It's as if a moral philosopher showed up at the Second Battle of the Marne in 1918 fretting about the use of automatic weapons."
Let's not forget what finally forced Reid's hand, MacGillis adds. Republicans blocked three Obama nominees to the powerful U.S. Court of Appeals for the District of Columbia, and "they were as blunt as could be in their motivation: They simply were not going to allow Obama and the Democrats to reap one of the age-old benefits of winning two elections in a row, being able to appoint judges of their choosing to the federal courts and thereby tilt their makeup slightly in their favor." You can't have unwritten Senate norms without bipartisan comity, he says.
And bipartisan comity not only left the barn long ago; it had been tracked down and shot behind the woodpile. It's long past time to stop mourning it and start to reckon with what its absence means for a constitutional system that was not designed for parliamentary-style, ideologically-coherent parties of the sort we are left with today, facing off across a muddy field. [The New Republic]Besides, says Paul Waldman at The American Prospect, Republicans have become so "procedurally radical" in the Obama presidency that Democrats would have been dumb to let them continue to try and nullify the will of the voters. "If you think Republicans wouldn't have changed the rule to benefit themselves at the first chance they got — no matter what Democrats did — then you haven't been paying attention."
For what it's worth, Norm Ornstein at the American Enterprise Institute suggests that Senate Minority Leader Mitch McConnell (R-Ky.) actually wanted to provoke the Democrats into going nuclear.
"For whatever reason, the Republicans decided to go nuclear first, with this utterly unnecessary violation of their own agreement and open decision to block the president from filling vacancies for his entire term, no matter how well qualified the nominees," Ornstein tells Talking Points Memo. "McConnell's threat, it seems to me, makes clear the strategy: Let Dems take the first step, and we will then bear no blame when we entirely blow up the Senate's rules after we take all the reins of power."
One thing's certain, says John Dickerson at Slate: Thursday parliamentary offensive merely "codified an established fact: The Senate club is no longer what it once was."
The old Senate was like a game of baseball — long, with lots of beer, time for conversation, lead changes, and occasional moments of excitement. The Senate today feels more like football — every play is combat, clash, and action of the moment. Given this pace, grab your chance to change the rules now because your opponent is going to change them in the future anyway. [Slate]Yes, the nuking of the filibuster is "a major, major, event," says The Washington Post's Jonathan Bernstein. But come on, "it's not as if the Senate has been static since the last time filibuster rules were changed (at least in a major way) almost 40 years ago."
One could argue that the rules change today returns nominations closer to how things were done in the 1970s than they have been for the last decade, and especially during the Obama era. However, what's more likely is that we'll see a Senate that isn't really like either of those bodies.... We really don't know exactly how this will play out, and what the Senate will be like in 2015. It's going to be fascinating to watch. But it's certainly a major, important change. And one thing that does appear clear: Barack Obama's nominees will soon be sitting on the D.C. Circuit Court. [Washington Post]
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