While there may be some bruised feelings and anger left behind in the aftermath, the so-called “nuclear option” unleashed Thursday by Senate Majority Leader Harry Reid and the Democrats hardly seems worthy of its destructive billing. It means only that from now on in judicial nominations other than those for the Supreme Court, the majority will no longer have to muster 60 votes to win confirmation.
That Senate Republicans immediately compared the change in Senate rules to Obamacare ― a non sequitur if ever there was one ― was only symptomatic of the political polarization that required such a change in the first place. Reining in the filibuster was necessary because its over-use had gotten ridiculous ― the three latest victims, the Obama administration picks for the D.C. Court of Appeals, were simply the last straw for a problem that has been years in the making.
Make no mistake, this was no big victory for Democrats. As Reid acknowledged when he introduced the rule change on the Senate floor, this will give his own party less clout in judicial appointments if and when the GOP gains a Senate majority. What’s good for the goose is going to be good for the next generation of ganders, too.
But as the majority leader also pointed out, this was necessary for the sake of the country. From Dwight D. Eisenhower to Gerald Ford, there were a total of zero filibusters of executive nominations. During Jimmy Carter and Ronald Reagan’s terms, there were a handful. During George W. Bush’s two terms, there were seven.
During Barack Obama’s time in office, there have been dozens. The problem has been felt most keenly in the judiciary, where there are now 75 open district court seats, an 11 percent vacancy rate, and far higher than the vacancy rate during the equivalent moment in either the second terms of Bill Clinton or Bush.
Republicans can point out that Obama has gotten most of his nominees confirmed overall, but the judicial filibusters have been particularly outrageous. And the GOP’s excuse ― that the nation’s second most powerful court and one that reviews much complex federal regulation didn’t need three of its 11 judgeships filled ― is disingenuous at best.
What’s really been going on here is that conservatives don’t want the clout of the judiciary’s remaining GOP appointees to be diluted. They are pushing their ideology on matters involving women’s reproductive rights, voting rights, marriage equality and on and on as far as they can ― drawing a proverbial line in the judicial sand.
Senate Minority Leader Mitch McConnell’s suggestion that this is a phony issue intended to distract voters was laughable. The Democrats nearly went nuclear four months ago (back when Obamacare’s website was not yet on anybody’s political radar) only to have a last-minute deal brokered by Sen. John McCain that resulted in vacancies finally being filled on the National Labor Relations Board. Others, including this editorial board, have been pushing for a change in Senate filibuster rules for years.
And speaking of distractions, it looks like Senator McConnell and others in his party will continue to cling to Obamacare and the Affordable Care Act as their excuse for inaction. Immigration reform? Can’t do it because of Obamacare. Grand deal on the budget? Sorry, Obama’s behavior on Obamacare means he can’t be trusted.
Obamacare, Obamacare, Obamacare. Really, are Republicans so cynical that they truly believe voters will forgive them for doing nothing for the next year except complain about a law that was passed in March of 2010? That’s not fixing any problem (real or perceived), that’s just rooting against the nation’s health, its economic recovery and its government.
In reality, most Americans won’t give a flying $10 co-pay about the nuclear option and how many senators it takes to end a filibuster, or dance on the head of a pin. Only in Washington, where so much is said and so little actually accomplished, will this be an all-consuming focus ― at least until Congress flies home for Thanksgiving break this weekend. More instructive is that after the rule change, one of Obama’s appeals court nominees, Patricia Millett, a woman who has argued 32 cases before the Supreme Court, was immediately confirmed.
Is the Senate now a bit more chilly? Maybe. Worse yet, perhaps the change in rules will cause presidents to nominate fewer judges with centrist beliefs and more who are overtly political ― but at least that can be corrected at the ballot box. Don’t agree with a president’s politics? Vote for someone else. Refusing to even allow a vote on judicial nominees as qualified as those Obama had recently offered for the D.C. appeals court was what caused the real damage, not the Democrats’ decision to use the only option they had to set things right.
