Politics

11.20.13

Harry Reid Prepares to Go "Nuclear" on the Judicial Filibuster

A year's worth of Republican obstruction have pushed Harry Reid to consider the "nuclear option" and end the judicial filibuster. He should do it.

Harry Reid has had enough. On Tuesday, after Republicans blocked another nominee to the D.C. Circuit Court of Appeals, the Senate Majority Leader signaled his willingness to end filibusters on judicial nominations—the nuclear option. At the Washington Post, Greg Sargent gives a little more detail:

Reid has concluded Senate Republicans have no plausible way of retreating from the position they’ve adopted in this latest Senate rules standoff, the aide says. Republicans have argued that in pushing nominations, Obama is “packing” the court, and have insisted that Obama is trying to tilt the court’s ideological balance in a Democratic direction — which is to say that the Republican objection isn’t to the nominees Obama has chosen, but to the fact that he’s trying to nominate anyone at all.

Reid believes that, having defined their position this way, Republicans have no plausible route out of the standoff other than total capitulation on the core principle they have articulated, which would be a “pretty dramatic reversal,” the aide continues.

To be clear, this isn’t the whining of a politician who can’t get his way; it is a reaction to extraordinary circumstances. Senate Republicans do not have specific objections to President Obama’s nominees, who fall within the judicial mainstream. Instead, to preserve the court’s conservative majority, they have issued a blanket objection to anyone Obama nominates to the D.C. Circuit, despite his right as president to fill judicial vacancies. It’s a position that, left unchecked, could extend to blocking all nominees to the federal bench, up to and including the Supreme Court.

What’s more, this is on top of a similar attack on Obama’s ability to fill executive branch vacancies and build a well-functioning administration. Again, it’s no exaggeration to call this nullification; Republicans have adopted procedural radicalism as a way to reverse the results of last year’s election.

Reid has made the “nuclear” threat before, but this blanket objection to Obama’s nominees is a new level of obstruction. So much so that formerly hesitant lawmakers like California Senator Dianne Feinstein have signed on to the effort. Indeed, as the New York Times reports, Reid might have the votes he needs to make the rule change and establish an up-or-down vote for judicial and executive branch nominees. Democrats now have a choice: They can allow Republicans to stymie Obama's agenda with the courts, or they can check power with power defend the president's perogatives.

If there’s a danger in this for Democrats, it’s that it could backfire when Republicans have control of the Senate and the White House, and can push their nominees through without trouble. Moreover, as Brian Beutler notes for Salon, there’s a real chance that—should they take the Senate in 2014—Republicans could use this as a precedent for scrapping the filibuster entirely in January 2015.

Both are risks worth taking. Yes, there’s value in being able to block right-wing nominees and legislation. At the same time, a GOP president also has the right to staff government as he sees fit, to say nothing of the fact that the filibuster has been a historic burden for liberals, not an advantage. And honestly, if Republicans win the Senate, I have a hard time believing they won’t end the filibuster as a matter of course, regardless of what Democrats do. Better for Reid to do this now, while there’s still something to gain, than to wait for the other side.