Essay: Harry Reid’s Nuclear Option – Good for the Nominees but Bad for the Senate

Essay: Harry Reid’s Nuclear Option – Good for the Nominees, but Bad for the Senate

The Senate is tossing and turning. Members are forced to weather the rough, churning waters left in the wake of the newfound battle between Majority Leader Harry Reid (D. – Nev.) and Minority Leader Mitch McConnell (R. – Ky.). The Senate’s inability to pass legislation and refusal to confirm qualified candidates nominated to important government positions and judicial seats has resulted in a public battle between politicians who until recently have always shown respect and deference toward each other. While making interesting reading and watching, it only serves as a distraction. The turmoil only muddies the waters on an important question: Should the Senate change filibuster rules?

Official portrait of United States Senator (R-KY) (Photo credit: Wikipedia)

The relationship between the two has steadily crumbled during recent months. Reid’s recent threat of a “nuclear option” has led to McConnell’s mistrust of his counterpart, believing that he is not going to honor the agreements the two came to in 2011 and 2012 to protect the traditional role of the filibuster. This feeling has recently been exasperated by the Minority Leader’s perception that Reid, and his Super PAC, are trying to influence his re-election in Kentucky. Reid has said he knows nothing about his Super PACS actions nor should he. But the claims, if true, would constitute a breach of the traditional behavior between opposing Senate leaders.

Sen. Reid, meanwhile, is clearly fed up with McConnell’s and the GOP’s refusal to hold confirmation votes on nominees resulting in Ried’s “nuclear” threats and anger at what he sees as McConnell’s refusal to honor a filibuster agreement the two reached early this year. His “vows” to limit the filibuster have boiled over into public combat recently, following McConnell’s warning that Reid would be remembered as the “worst” Senate leader “ever” if filibuster rules were changed by a majority vote.

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Drowning Out What Matters

Between fighting about confirmations and the filibuster, a lack of trust between the two leaders, and anger over public remarks and re-election involvement, it is little wonder that real discussion about the pros and cons of changing the filibuster have been drowned out.

The filibuster has long been an effective and important tool to protect the minority in government. It can be used to delay legislation and ensure that the views of a small group of senators are heard. Throughout American history, politicians have used it to great effect, and today, the traditional filibuster (as opposed to the silent variety), is an extremely effective way to voice opposition, especially passionate moralistic opposition, to a proposed bill of act.

The filibuster can be an effective tool, able to draw national attention to an issue, boost the recognition of a politician to the national stage, or simply delay an inevitable vote long enough to force additional debate in the public and on the Hill.

Most recently Sen Bernie Sanders (I – Vt.) drew national attention from media and sympathy from voters with his 8 hr. and 37 minutes filibuster of a proposed agreement between a tax cut deal between the President and Republican leadership. Similarly, Senator Rand Paul’s extraordinary 13 hour filibuster, calling attention to the American Government’s use of drones over American soil, brought him strong public support on social media and a resulting bump in national popularity.

But, conversely, the filibuster can cripple Senate action and grind even ordinary measures to a halt. Washington has been inculcated by this type of problem, with “silent holds” acting as filibusters in the absence of cloture. Famously, judicial seats are left unfilled (as of April, the NY Times was reporting that 10% of federal district and circuit court seats were empty) and no bill, no matter how seemingly uncontentious, can pass without a supermajority.

But what is the right thing to do? Should Sen. Harry Reid force through a change in the rules, or should the Senate try to amend the use of the filibuster without going so far as to kill it all together with a simple majority vote? The repercussions of such a “nuclear option” are vast, subtle and difficult.

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The Nuclear Option: Danger, Danger Will Robinson!

Harry Reid’s “nuclear option” is dangerously extreme. As explained by Jonathan Weissman and Jeremy Peters of the NYTimes, “the majority leader, through a simple majority vote, would put new limits on the minority party’s ability to filibuster presidential nominees. Ordinarily changes to the rules of the Senate require a two-thirds majority; Democrats hold 54 seats.”

This option cannot be taken lightly as it may destroy many of the differences between the House and Senate, could undermine protection of the minority (regardless of party) and throw an important, oft-used traditional political tool into the trash heap.

It certainly is true that the Senate needs to vote on appointees to the various seats and positions that have for so long gone unfilled. It certainly is true that the filibuster has been misused over the last three presidential terms. But the misbehavior has not been saved for one party, faction or group of politicians. Democrats and Republicans alike have used the filibuster to their benefit, stalling and in some cases stopping bills disliked by the minority.

Aside from removing the ability of many lesser known or less powerful Senators a chance to voice exactly why they will not allow a nomination, scrapping the current filibuster system risks compromising the Senate on a fundamental level. Trashing this old tradition would obfuscate some of the uniqueness that makes the Senate the body we know today. Removing this system, especially in a “nuclear option” Harry Reid led manner, risks removing the trust and compromising nature of the Senate, making it simply another version of the House of Representatives. Senator Harry Reid cannot let that happen.

Washington, by all accounts, is broken. Legislation, regardless of how popular is rarely passed. Laws, regardless of how needed, are rarely written. Confirmations, regardless of how qualified the candidate, rarely take place. But, the Senate still manages to occasionally do it’s job, find compromise and attempt to govern the nation. By pushing through his nuclear option, Reid risks alienating both traditionalists, politicos and the Minority party, risking the very culture that makes the Senate more effective than the House.

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Majority Leader Reid is right to be unhappy, annoyed and furious with the GOP and Minority Leader McConnell. Their actions recently, especially regarding confirmations, have been obstructionist to say the least. But by pushing through a “nuclear option” Sen. Reid will likely gain the 7 confirmations he is angling for at the expense of  the Senate’s culture, future credibility and the likelihood of future legislating. The Senate, in today’s Washington climate, has been a truly unique body, able to fail to find compromise most of the time, not all the time.

Harry Reid would do well to remember that the long term future of the Senate is more important than the short term prospects of Obama’s nominations. Rather than resorting to such a drastic rules change, Leader Reid should look to find a way to amend the current system. Maybe there is a way to make the “silent hold” practice truly impossible. In 2012, Democratic Senators signed a petition to agree to stop silent holds and filibusters, but it is time for this to be truly impossible. This would force Senators to publicly acknowledge their actions. Maybe there is a way to, with a simple majority, allow a confirmation process to start, but allow filibusters to take place during that process. This would allow the public to hear why a particular Senator doesn’t want an individual to gain a particular position, rather than hide behind the leadership and prevent the process from beginning at all.

If Senator Reid he uses a “nuclear option,” he will risk selling the farm to save his corn. The Senate would likely confirm important nominees, but would be crippled, robbed of a traditional process and a unique culture of compromise.

The Politics of Lifetime Appointments

The Politics of Lifetime Appointments – As people ask about Justice Ginsberg‘s retirement, the idea of Lifetime Appointment is no longer insulating the Judiciary from political gamesmanship.

– Christopher Carroll

Lifetime appointments are not insulating the Supreme Court Justices from politics.  We should stop pretending that it does. Unusually intense national attention on the Supreme Court, driven by recent high profile Court decisions, has left many people asking a question with serious political ramifications: when will Ruth Bader Ginsberg call it a career?

The 80 year-old Ginsberg has led the liberal-leaning Justices since her appointment to the Supreme Court in 1993. She has been the champion of liberal ideology on the Court since the retirement of Justice Stevens in 2010, himself 90 years old when he hung up the robes. But with a democratic president in his second term, many a questioning when the best time for Ginsberg to retire might be whilst ensuring a solidly left-leaning Justice takes her place. Many people are starting to think that this could be that time.

Justice Ginsberg, to her credit, vociferously disagrees, believing that she will not step aside to accommodate President Obama’s desire to fill her seat so long as she is still mentally and physically “equipped to do the job.” But, as Jamelle Bouie astutely discusses in a July 5th (link#3) Washington Post opinion piece, the questions over Ginsberg’s retirement raise an undeniable problem, the practice of lifetime appointment doesn’t seem to work anymore.

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Lifetime judicial appointments have been a hallmark of American Supreme Court law ever since it was vociferously argued for by Alexander Hamilton in Federalist #78. The intention of the practice was to protect the Judiciary from the Legislative and the Executive branches of the government and the popular opinion of the public. Without strong systemic protection, Hamilton feared that Judicial Review would cease to be based upon the Constitution, compromising the important role the Supreme Court has played in the balance of power in American democracy.

Lifelong appointments have certainly contributed to the Supreme Court’s extremely stable, authoritative and legitimate history in American democracy. However, it is telling that very few nations around the world have followed the American example. Perhaps they foresaw what Hamilton and the Founders did not: that even with lifelong appointments, judicial review and judicial appointments are extremely political.

It must be noted that those people calling for Ginsberg’s retirement are making a political miscalculation. Those who believe that Obama, a centrist by the account of many liberals, will pluck a younger version of Ginsberg from the sea of qualified individuals have not been tallying recent political history and are wrong for two reasons. First, it won’t happen, and second, Obama isn’t the type.

First, passing Judicial nominations has been historically difficult for this administration due to the misuse of the filibuster. There are countless important seats on important benches left currently unfilled because nominees cannot get a vote. Harry Reid’s moaning and “nuclear option” threats have thus far fallen on deaf ears. Additionally, using the “nuclear option,” a method of changing filibuster rules in order to pass confirmations with a simple majority, would do more damage to the legitimacy of the Court than any other action.

English: Harry Reid (D-NV), United States Senator from Nevada and Majority Leader of the United States Senate (Photo credit: Wikipedia)

Silent Filibuster – Senate (Photo credit: DonkeyHotey)

Second, President Obama has shown time and again that he is both a centrist and uncomfortable with controversial nominations. Every time he has picked (or even been rumored to pick) a high profile and polarizing figure to high office, he has backed off in the face of Republican outrage – see Susan Rice’s Secretary of State saga and the President’s failure to aid Sec. of State Chuck Hagel while in the confirmation process.

These two oversights aside, the debate over Ginsberg’s retirement is showing the nation that lifelong appointments no-longer insulate the Supreme Court from politics. Today, the President’s attempt to gain as much influence as possible by appointing the youngest judges they deem qualified, resulting in a highly polarized judicial body. Today, Justices are being asked when they will step down, not because their mental facilities are failing but because it is more convenient for one or another political party. Today, if Hamilton were alive, he would cringe. Today, though the Judiciary was meant to be a-political, it has become hyper-political.

Is it time to amend the Constitution and abandon lifetime appointments? Is it time to institute an age limit for Justices? Is it time to institute an age minimum for Justices? Whatever one’s particular feeling about these ideas, none are likely to be accomplished in the near or even distant future. Amending the Constitution is a uniquely difficult proposition (link#7), made harder by the hyper-polarized nature of the Senate and the House. But acknowledging that we have a problem is the first step.

Justice Ginsberg remains an extremely capable, intelligent and brilliant adjudicator who, with luck, will continue to serve this country with distinction. If President Obama and Democrats are worried about who will replace her, they should instead focus on Congressional and Senate elections and leave the Justices charged with checking the other two branches alone. When Ginsberg needs to retire, she will. Democrats shouldn’t try to force out a brilliant mind simply because this moment is easy. This moment, with this President and with this Congress, might be exactly the wrong time.