How to Stop Worrying and Love the Nuclear Option

Did you feel the nuclear shockwaves resounding from the Senate yesterday afternoon? If not, just wait, because they’re coming.

Senator Reid finally made good on his saber-rattling and pushed forward with his threats to detonate the “nuclear option” that would change the Senate rules to eliminate filibusters for judicial and executive nominees. The walls of the Capitol may still be standing, but we will see fallout from Thursday’s decision for years to come with casualties on both sides of the aisle.

First the obvious: Judicial nominees will all receive an up-or-down vote after cloture is invoked. In the immediate future that means Reid and the Senate Democrats are moving forward with the nomination of Patricia Millett for the D.C. Circuit. Her addition will mean judges on that circuit will be twiddling their thumbs while there are 38 judicial emergencies in other courts, almost half of which don’t even have a nominee. While our nation struggles with a dysfunctional health-care bill and exploding debt, taxpayers will pay about $1 million annually for each redundant D.C. Circuit judge. And, as C. Boyden Gray has explained, adding more politicized nominees will damage the collegiality of that court.

The damage to the D.C. Circuit should not be understated. If, as President Obama and his Democratic colleagues have promised, the new nominees are committed to green-lighting the administration’s power grabs, our constitutional limits on government are in serious danger. The Senate rules may be changeable with a 51-vote majority when senators deem it to be politically expedient, but the Constitution should not change because two-thirds of a judicial panel value expediency over the rule of law.

Going forward, the president may choose to put more radical nominees forward knowing that there will be no filibuster to stop them. But it’s not clear he currently has the political capital to bring such nominees across the finish line. Three Democrats voted against the rule change yesterday; two were vulnerable red-purple state senators Pryor (D., Ark.) and Manchin (D., W.V.). Senator Pryor in particular has been smarting from an ad my organization ran recently in his state calling him out for supporting all of President Obama’s judicial nominees. As the 2014 elections approach and Democrats become more desperate to decouple themselves from the president and his signature “achievement,” I predict that Obama will feel less flexibility, not more, in his judicial picks.

And, by 2016, the shoe may well be on the other foot with respect to the occupants of the White House and the leadership in the Senate. We could see a bevy of budding Scalias and Thomases filling the appellate or even Supreme Court seats. Principled nominees with a clear record of their judicial philosophy need not fear facing years of filibusters. 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. Henceforth, Republican Senate candidates who incomprehensibly still support judicial filibusters should be called out for supporting the empowerment of liberal minorities at the expense of conservative majorities.

Up until now, Senator Reid has been content to have his cake and eat it too. In July, he was able to get every executive nominee he wanted approved by simply threatening to eliminate the filibuster. I’m sure he would have preferred to leave that as the status quo because it allowed him to neutralize the Republicans’ use of the filibuster while leaving it in place for Democrats to use in the future. Reid is intimately familiar with the usefulness of the filibuster, having perfected its deployment against Bush nominees. He has waxed eloquent about how eliminating the filibuster for judicial nominees would be a shot through the heart of the senate and even the Constitution itself. That makes yesterday’s move not only of questionable long-term wisdom, but breathtakingly hypocritical. And such hypocrisy won’t sit well with the American people, who are increasingly frustrated with the politically-motivated lies and self-serving maneuverings in the context of Obamacare.

The fall-out from yesterday may be muffled, but the move may expose cracks in the Democrats’ foundation. Keep listening in November 2014.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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