In politics, unused weapons tend to eventually get used. For years, custom dictated the filibuster was a rare tool for use in cases of extreme disagreement (most commonly, by a southern Democrat to block civil rights laws). But custom gave way to power, and the filibuster evolved into a routine supermajority requirement for all legislation. This year, Senate Republicans have taken the next logical step: using the filibuster to prevent President Obama from filling vacancies in his administration and the judiciary.
This method, like other uses of the filibuster, proceeded evolutionarily from the old methods. Senators of both parties have previously used filibusters to block nominees they found especially objectionable. What Senate Republicans have done this year is a difference of degree that amounts to a difference of kind: They have declared their intent to impose permanent vacancies in Obama’s administration and in three swing seats in the crucial D.C. Circuit Court.
But the Senate majority has an unused weapon of its own: the nuclear option, which is a simple majority vote to limit (or, in theory, abolish) the filibuster. In 2005, Senate Republicans used the nuclear option as a threat to force Democrats to stop filibustering George W. Bush’s judicial nominees – conservative pundits at the time widely deemed the judicial filibuster an outrageous violation that should be banned for all time. Earlier this year, Senate Democrats threatened the nuclear option to lift a blockade on nominees to the National Labor Relations Board and the Consumer Financial Protection Bureau. Republicans capitulated, granting the president’s general right to staff his own administration. Now the question is whether they will do the same with judges.
Harry Reid has taken a somewhat cagey line here, telling reporters, “We need to do something to allow government to function,” and “I’m considering looking at the rules.” This probably suggests Reid does not yet have firm commitments to change the rules from 50 Democratic senators. But the fact that Reid can come close to threatening the nuclear option also likely suggests he thinks he can get those votes – probably a tiny number of undecided Democratic senators are hoping the threat of a nuclear change persuades Republicans to back down.
But, as some Republicans have correctly noted, if the majority can constantly threaten a rule change to break a filibuster, then you might as well change the rules. The Republicans are right about something else, too: A world in which 50 senators can confirm a lifetime judicial appointment could one day have frightening ramifications. The general logic of abolishing the filibuster is that the majority party ought to be able to enact its program, and if they go too far, voters can install a new government to undo it. That rationale does not apply to judges who serve until they die and can rewrite the law however they choose.
Ideally, the Senate would find some mechanism that would be strong enough to allow the minority to block unusually extreme judges from the bench, but weak enough to prevent the minority from issuing a total blockade on even qualified judges. That would require the creation of some sort of creative power-sharing arrangement that gives formal definition to the devilishly ill-defined concept of “advice and consent.” But the trend in American government has been that power does not get shared, and instead flows to whichever party has the will to seize it. Senate Republicans have seized new powers by imposing a judicial blockade on the D.C. Circuit, and the only available Democratic response appears to be seizing back more power still.