It Might Finally Be Time for the 'Nuclear Option' in the Senate

Abolishing filibusters for judicial nominees could be dangerous, but Republican obstructionists have left few alternatives.
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Watching Sen. Chuck Grassley this week rail against President Obama for "court packing" made me laugh out loud. I laughed for several reasons. One was wondering whether a senior senator and longtime member of the Judiciary Committee really had no idea what court packing is, or was he reaching for new heights of disingenuousness: How could a move by a president simply to fill long-standing existing vacancies on federal courts be termed court packing?

I also laughed because it brought back to me the long controversy over the so-called "nuclear option" to erase filibusters on judicial nominations that gripped the Senate from 2003 to 2005. Back then, Senate Majority Leader Bill Frist, frustrated by Democrats' filibusters and threatened filibusters of Bush Appeals Court nominees Miguel Estrada and Priscilla Owen (and the fear of a filibuster on a potential Supreme Court nominee), threatened to change the Senate's rules in midstream by simple majority, declaring filibusters on judicial nominees as unconstitutional.

Of course, back then, Democrats ardently opposed the nuclear option as Republicans supported it. And no doubt the positions, the arguments, the rhetoric, will be precisely reversed this summer.

Back then, I wrote many columns on the subject, upholding the notion of filibusters on judicial nominations while advocating reform of the filibuster. I also expressed grave doubts about the use of the nuclear option, noting that it would inevitably provoke a strong and sustained response from the minority, using the many tools available to them in the Senate to bollix up the works and bring the place to a halt that go far beyond Rule XXII.

Is anything different? Actually, some things are. To review the history a bit, as the threats to blow up the Senate's rules reached a crescendo in May 2005, a "Gang of 14" senators, seven from each party, reached a deal that enabled several Bush nominees for Appeals Court positions to get up-or-down votes, excluded a couple of others, and declared that all would support cloture of future judicial nominees through the 109th Congress except under "extraordinary circumstances." The deal held throughout that Congress, but when Barack Obama became president, it was clear early on that the deal was at best moribund -- two Republican members of the Gang of 14, John McCain and Lindsey Graham, joined in a filibuster of an Obama pick for the Seventh Circuit, David Hamilton, without any reference to an "extraordinary circumstances" rationale.

Recently, a superbly qualified Obama choice for the D.C. Circuit, Caitlin Halligan, withdrew from consideration after a second attempt to get her confirmed failed, via another Republican filibuster. In the interim, scores of Obama nominees for District and Appeals Court positions have been delayed for months or years after formal nomination, through holds and other obstructionist mechanisms, most of which are related to the threat of a filibuster. A recent report from the Congressional Research Service by Barry McMillion notes that Obama's judicial nominees have been delayed longer than his four most recent predecessors; he is the only president for whom the average and media waiting time from nomination to confirmation was greater than a half year. (I should add that the delays by the president before nominating judges have been ridiculous.)

At the same time, Republicans have used holds, filibusters, and threats of filibuster against executive nominees, including Obama Cabinet choices and scores of others, at an unprecedented level.

At the beginning of the 113th Congress, Harry Reid struck a deal with Mitch McConnell to alter Senate rules modestly, including expediting confirmation of District Court nominees, heading off a larger change in the filibuster rule championed by many Senate Democrats. Implicit in the deal was that the extraordinary level of obstructionism would be ratcheted down -- the problem was less the rules as they existed and more how GOP leaders had ignored the long-standing norms of Senate conduct.

Since then, we have seen a very interesting fandango between Reid and McConnell, with Reid periodically threatening to bring back the nuclear option unless McConnell and his colleagues return to some semblance of regular order, McConnell responding by letting a few nominations go through, McConnell subsequently ratcheting up the obstruction, generating another threat from Reid, and so on.

Right now, there are two areas of deep conflict. The first involves the D.C. Circuit, the most significant Appeals Court, where there have been four vacancies for a long time (one was just filled with Sri Srinivasan, in a McConnell move to dial back after the unconscionable filibuster against Halligan). Counting senior status judges, Republicans have a majority on the court, and they have used it to slap back Obama's presidential powers on several occasions. Obama will soon nominate three individuals to fill the remaining vacancies, and it will be a test of whether there is any "extraordinary circumstances" excuse or simply a minority effort to block a president for eight full years from filling vacancies.

The second area is executive nominations, especially Cabinet-level nominees for Labor and the Environmental Protection Agency, along with Richard Cordray's long-standing nomination at the Consumer Financial Protection Bureau. And the fandango continues, as Sen. Rob Portman, R-Ohio, is trying to broker a deal to get confirmation for Cordray to head off a nuclear strike. If McConnell sees Reid's threat as real this time, expect further negotiations, with several nominations moving forward in June and July. If McConnell digs in, watch out.

I remain deeply uneasy about a nuclear option, even as I condemn the unprecedented obstructionist tactics employed in the Senate (which were also condemned last week by Bob Dole and lamented by John McCain) and call for deeper reforms, especially on nominations, in Senate rules. The fallout from such a move is unknown but would be substantial and deleterious. It would be far better to return to regular order, and to the use of filibusters as rare events, not routine ones. But if senators who know better -- like Lamar Alexander, Bob Corker, Susan Collins, Lindsey Graham, and Saxby Chambliss -- jump when McConnell tells them and continue to obstruct nominations, they should expect to reap the whirlwind. And they, and their colleagues, will be the ones responsible for the damage done.

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Norm Ornstein is a correspondent for The Atlantic, a contributing editor and columnist for National Journal, and a resident scholar at the American Enterprise Institute for Public Policy Research.  More

Ornstein served as codirector of the AEI-Brookings Election Reform Project and participates in AEI's Election Watch series. He also serves as a senior counselor to the Continuity of Government Commission. Ornstein led a working group of scholars and practitioners that helped shape the law, known as McCain-Feingold, that reformed the campaign financing system. He was elected as a fellow of the American Academy of Arts and Sciences in 2004. His many books include The Permanent Campaign and Its Future; The Broken Branch: How Congress Is Failing America and How to Get It Back on Track, with Thomas E. Mann; and, most recently the New York Times bestseller, It's Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism, also with Tom Mann.

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