There's an old adage in politics that the way to win political struggles is to "bring a gun to a knife fight." If this imagery isn't violent enough for you, the subject on the table now is whether Senate Majority Leader Harry Reid is considering what is called the "nuclear option." If bringing a gun wins a knife fight, then I guess dropping a "nuke" would pretty much obliterate the opposition. Which is why the term "nuclear option" was coined in the first place -- to show what a radical move it would be.
Specifically, "going nuclear" means a vote in the Senate to change the rules by which the chamber operates under. This doesn't seem all that controversial at first, but the reason it is seen as such a drastic measure is that the vote would be a straight majority vote -- 51 votes would win (or even 50, with Joe Biden casting a tie-breaker). Traditionally, the Senate has only changed its rules by supermajority votes, or on the first day of their session (which won't happen again until January of 2015).
So far, it hasn't happened. Instead, what might be called "nuclear deterrence" has worked. Merely threatening to "go nuclear" has been sufficient to make the opposition party back down, usually after some "Gang Of (insert number)" group hashes out a détente of sorts. This time, however, this doesn't appear to be a viable route.
At the heart of the fight, of course, is the filibuster. In particular, filibustering judicial nominees. Now, both parties have filibustered judicial nominees in the past, but since Republicans became the minority in the Senate the use of filibusters in general has exploded. They've been filibustering just about everything they can, until it's gotten to the point that news organizations often now lazily (and incorrectly) state that "it takes 60 votes to pass a bill in the Senate." Bills aside, though, the current fight is over judicial nominations -- three of which just got filibustered in the past few weeks.
The Republicans seem to have come up with a rather novel idea of how American government is supposed to operate. They say they're just "preserving the balance of power" which exists on the circuit court in question. Adding judges a Democrat nominates would change this balance of power, so Republicans are just going to stop anyone who gets nominated -- no matter how qualified. This is ridiculous, at least to anyone who has actually read the Constitution (as opposed to just sanctimoniously carrying a copy around in their pocket). Are all courts supposed to just stay "in balance" forever? No, they are not. The president gets to appoint judges as seats become available, as the Constitution clearly states.
Putting aside the wonky details of the core fight, though, a quick examination of the possible political outcomes shows that Harry Reid really doesn't have much to lose by going nuclear -- by changing the Senate rules so that filibusters aren't even allowed on judicial nominees below the level of the Supreme Court. In the past, the mere threat of going nuclear would be countered with the threat "if your party does so, then our party will bring this chamber to a halt and not agree to anything you guys propose." The problem for the Republicans now, though, is that it's not much of a threat because we're already at that point. Nothing moves forward now without 60 votes, so how is the threat "we'll filibuster everything" going to change the status quo at all?
That's in the short term. But even when you look at the medium-to-long term, there aren't many downsides to Harry dropping that "nuke." Considering the 2014 and the 2016 elections, there are only a few possible outcomes, politically. One by one:
Democrats keep the Senate
If Democrats keep the Senate by losing fewer than six seats in 2014, then President Obama will have three years of seeing his nominees easily confirmed. Republicans will go ballistic (to keep with our "nuclear" theme), and hold several temper tantrums and try to block everything they can. Which is, pretty much, exactly where we are now anyway, so nothing much will change (other than the added amusement of watching the temper tantrums). If Democrats keep the Senate in 2016, no matter who is elected president, then they'll still have the power to either confirm or block nominees -- as the Constitution intended.
GOP wins Senate
Say Harry Reid invokes the nuclear option by the end of the week (a real possibility, from the news reports). Democrats will have until January of 2015 before any change in the Washington balance of power is possible. Obama can start naming judges to the federal bench at a rapid pace, and they will all be confirmed in a timely fashion. This is only his due, after all -- any president who serves two terms gets to leave his stamp on the makeup of the federal judiciary. If the Republicans gain control of the Senate in the midterms, then assumably no more Obama nominees will move forward (or, at the least, only the most conservative ones will manage to get confirmed). However, the Republicans won't have to change any rules to do this -- they'll have the majority to work with instead of the limited tool of the filibuster. They'll have the votes to block nominees, so they won't need the filibuster. Minority Democrats won't be able to use the filibuster to confirm anybody, since it can only be used to block nominees. But it really won't matter what happens in 2013 and 2014, because this is the guaranteed result if Republicans take the Senate starting in 2015 anyway. So Harry Reid has little to lose in this scenario by breaking the logjam now, and giving Obama at least one year of easy confirmations. The only possible fallout could occur in 2016, if the Republicans keep the Senate and elect a president. Which brings us to...
GOP wins Senate and White House
This is the only scenario where "going nuclear" would involve some blowback to Democrats. If a Republican president had a Republican Senate to work with, then Democrats would have removed their own ability to filibuster judicial nominees. But you know what? I would bet good money that in this situation the Republicans would change the rules anyway. There would be nothing to stop them from doing so, and they have already shown that they are willing to go for the throat with any and all parliamentary maneuvers they can muster. The evidence of this is quite easy to see, because it is precisely what has brought us to this point in the first place. Their unprecedented use of the filibuster -- invoking it many times more than Democrats ever have -- has shown that they are unconcerned with how things are "traditionally" supposed to work. Every time they've reached an agreement to allow a few nominees forward (during the previous times Harry Reid has threatened the "nuclear" option), they have -- after a short window of allowing votes -- gone right back to filibustering everything and everyone once again. The question to ask is whether anyone thinks that -- should Republicans take power -- they'll allow Democrats to do what they are now doing. Once the shoe is on the other foot, does anyone really believe that they'll let Democrats get away with the kind of obstructionism they've been practicing of late? I don't, personally. To put this slightly differently: the down side of Harry going "nuclear" now would happen in any case.
What all of these options show, one way or another, is that Harry Reid really doesn't have much of anything to lose by changing the Senate's rules now. The two Republican threats against it aren't credible. The first is that Republicans will filibuster everything in sight, in retaliation. But that is already happening. It'd be hard to tell the difference, really. The second threat is just as empty as well, because once Democrats hold only a minority in the Senate and a Republican president takes the White House, the Republicans are bound to change the rules anyway. Democrats won't be able to filibuster Republican judicial nominees, because Republicans are all but guaranteed not to allow the same sorts of shenanigans they've been deploying against Democrats to be used against themselves. So the two threats, reduced to their essence, are: something that is already happening, and something that will happen no matter what Harry Reid does now. Which redefines both outcomes not as threats but as inevitability.
Harry Reid really has nothing to lose by changing the filibuster rules. He does have something big to gain, though: a minimum of one year of confirming judicial nominees as the Constitution intended (the filibuster is not in the Constitution, remember). If Democrats keep the Senate, then Reid will gain three years -- the rest of Obama's second term -- of the Senate operating as designed. For as long as the Senate and the White House stays in Democratic hands, judges will be confirmed in a timely manner. Once Republicans take one or the other, Democrats will pay the price they would have paid anyway, so no real loss there.
To stay with our extended "nuclear" metaphor (and metaphor it is, which is why I insist on the quote marks around "nuclear" here), Harry Reid is in the position of launching a pre-emptive strike. If Republicans take the Senate, they will not hesitate to change the rules in their favor, meaning Harry has nothing to lose and everything to gain by deploying such a first strike.
Launch the "nuke," Harry. There's really no reason left not to launch it, at this point.
-- Chris Weigant
Cross-posted at The Huffington Post
Follow Chris on Twitter: @ChrisWeigant