On the Democrats and the nuclear option: why now?
If you want to understand what happened Thursday when the Democrats jettisoned 200 years of precedent and exercised the nuclear option, a good start would be this WSJ piece by James Taranto, who points out (among other things) that the Senate’s move not only diminishes the power of the minority party in that legislative body, it diminishes the power of the Senate itself vis a vis the president and the House:
The end of the filibuster entails a serious diminution of the Senate’s power vis-é -vis the president and the House. As we observed this July, the Senate’s power consists largely in its ability to withhold consent from both House-passed legislation and presidential actions (nominations and treaties). Thus majority rule enhances the power of the majority party at the expense of every individual senator, regardless of party.
As the Senate has become more partisan, and members elected during an earlier age have retired or died, concern for the Senate’s institutional power has diminished. Yesterday’s third Democratic dissenter, Carl Levin of Michigan, is one of only three remaining Democratic senators first elected before 1984.
Taranto doesn’t mention it, but another long-timer—Montana’s Max Baucus, who was originally elected in 1978 as a moderate Democrat—voted with the majority Democrats to pass the move the killed the filibuster. Why did Baucus do it? Well, this is what he said:
After talking to Montanans, it was clear to me this was the right thing to do,” said Sen. Max Baucus. “The people we work for are sick of gridlock keeping Congress from doing its job and it was time to stand up and do something about it.”
However, I can’t imagine anyone (much less Baucus) believing that the people of Montana, who went for Romney in 2012 by a 14% margin, actually feel this way about giving Obama and the Democrats in the Senate far more power. I would postulate that Baucus actually did it because he could: he already was no longer seeking re-election, because the people of Montana had decided that they’d had enough Baucus for a lifetime and withdrew enough support that polls last spring showed he would probably lose his next race. So what better way to stick it to them than to vote for the nuclear option?
Taranto points out another point about the vote by Democrats, which is that in some ways it would appear self-destructive:
What’s peculiar about the timing of the Democrats’ decision is that it comes just when the partisan risk of abolishing the filibuster has been heightened…The abject failure of ObamaCare has made the prospect of a Republican Senate in 2015 and a Republican president in 2017 much likelier. Thus even from a purely partisan standpoint, rational Democrats would have been more cautious about invoking the nuclear option when they did than at just about any other time in the past five years.
Taranto goes on to explain the action in terms of what’s called “prospect theory,” which postulates that:
…people will take bigger risks in the hope of minimizing a loss than in the hope of maximizing a gain. The psychological impact of the loss itself clouds one’s thinking about the risks of magnifying the loss. That explains why the Democrats went nuclear just as the perils of doing so multiplied.
That may be true, but I disagree that the perils of an action such as this have multiplied for the Democrats, if you look at it from their point of view.
Here’s why: Democrats may know they’re on their way out, but they’re playing the long game and in any event they may think the loss inevitable and therefore unstoppable. By doing this now, Obama gets to play out his very liberal agenda to much greater effect, and will be able to institutionalize changes in the judiciary that will benefit the Democrats in the long run.
But even more important than that may be something I haven’t seen talked about too much, which is the fact that the Democrats may have believed (whether it’s true or not) that if they lost the Senate in 2014 it would be the Republicans who would then go for the nuclear option at that point. So why not do it now themselves, when Democrats would be the beneficiaries for over a year?
But why didn’t they go even further and abolish it for other types of votes, too, not just judicial appointments of the non-SCOTUS type? I firmly believe that the Democrats would have done just that if they thought it would have benefited them right now, but I think they calculated that at the moment it wouldn’t have because they don’t control the House. Therefore it would be hard to pass much legislation even with the nuclear option in the Senate for regular bills. They will extend it to apply to SCOTUS appointments, however, if within the next year something happens to any SCOTUS Justice and there’s an appointment of a new member to the Court; no way the Democratic majority in the Senate would allow the Republican minority there to block such an all-important approval.
They would also extend the nuclear option to apply to regular legislation if there is a chance of some of their pet legislative projects getting through the House. But until then they will act as “moderate” as possible by limiting the scope of the majority rule, leaving it up to the Republicans to go further (and incur lots of criticism for doing so) if they ever get into power.
The Democrats also realize that most people don’t really understand how cloture or the filibuster works, and may not understand the significance of the move the Democrats have made and just how hypocritical they are being. The Democrats sometimes underestimate the American public, but sometimes they get it just right, and I don’t know which it is this time.
In sum, I just don’t think the Democrats thought this move was all that risky considering their position prior to it, and considering what they thought Republicans were poised to do if and when they got to power. I wonder whether the GOP actually would have had the cojones (and the disrespect for precedent) to do that; I have my doubts, although they may have.
But rest assured that if they do come into power and extend the nuclear option to SCOTUS appointments and/or to ordinary bills, the Democrats will then excoriate them for their extreme and evil partisanship. You can bet on it.
When going for the end game of check mate in chess, it’s often necessary to sacrifice some pawns for a tactical advantage. The issue is whether the strategy pans out or not.
A lot of people consider victory or loss in terms of elections and votes. In a war, arguments and voting have little to do nothing to do with tactical and strategic victories.
Most troubling of all is the Senate republican’s acceptance of this charade. Not that they can stop it but they are not opposing this seizure of power by formally declaring it to be an invalid Senate violation of procedural due process.
The Senate procedural rules are that it takes 60 votes to approve a nomination and a supermajority of 66 votes for a rules change. Reid and the democrats unilaterally declaring a rules change on a 52-48 vote is procedurally invalid and arguably, so are any judicial appointments made without a 60 vote approval. The Republicans should so declare.
Thus, any federal justices appointed with less than 60 votes will be serving under false pretenses. Given that any justice appointee must be aware of this, any acceptance of the office without the requisite 60 votes is prima facie evidence of malfeasance in office because they are knowingly colluding in the accepting of the office’s recompense (money, status and power) under false pretenses.
Whether acknowledged or not, the democrats have created a Constitutional crisis and given that its aim is to pack the Federal judiciary, the SCOTUS clearly has jurisdiction to invalidate this action.
A Republican President would also have the legal jurisdiction to invalidate those appointments because the executive branch has the enforcement authority when elected officials [senate democrats and their appointees] are guilty of malfeasance in office. Malfeasance is not necessarily monetary in nature, in this case it is a violation of procedural due process.
Geoffrey,
The problem is that the Senate makes its own rules for conducting business. The Constitution makes that abundantly clear. Sure, the Senate rules say that it takes a 2/3 vote to change the rules, but there is no way to enforce that if a majority of the Senate decides not to follow that rule. So, if the majority decides that you can’t filibuster a judicial nominee, then that is that as far as this Congressional session goes.
As for the Republicans, I think they are laying low on this one for two reasons- (1) to further gum up the Senate will be giving Reid one of the things he wants- a spectacle that the supine media can cover that takes the attention away from Obamacare’s debacle; and (2) there is just not much that they could effectively do that matters since the House and the Senate aren’t likely to pass much in the way of legislation in the first place. Laying low looks like the right approach to me.
Now, if the Republicans actually do retake the Senate in either 2015 or 2017, I actually expect the Democrats to reinstate the filibuster in such cases as a rule, again by majority vote, during the lame duck session, and I guarantee you The New York Times will publish an editorial lauding this as a corrected mistake. Hypocrisy knows no bounds when it comes to Democrats.
Neo- does this move have any effect on the ratification of treaties?
By state law, the Montana legislature must meet for 90 days every 2 years. The joke in Montana is that the law should be changed to require the legislature to meet for 2 days every 90 years. Baucus is being spiteful. Once he realized, as one of the primary architects of Obamacare, that he could not win re-election he decided to salt the earth.
I think the republicans have a very good shot at winning a majority in the senate come 11/14. However, I’m doubtful that they will use this rule change, should they become the majority, to hold BHO’s feet to the fire.
southpaw,
66 votes in the senate are required for all treaties to become the law of the land.
If you want to see a possible glimpse of the future go see the new Hunger Games: Catching Fire. A very well made movie.
This movie is much more clearly political in how it portrays a burgeoning revolution against a centralized totalitarian regime.
Good actors, good plot, you will have fun.
The Democrat party is presently populated with radicals from the 60’s. I think another reason they are going ‘all-in’, and have been since 2008, is we are watching their last stand. This truly is the moment they’ve waiting for, and even with their success in education and culture, there is not a generation that will follow them that is nearly as radical as they are.
They found their puppet in Obama, groomed him, got him elected president, and this is probably their last and best hope of transforming the country in their own image. It’s now or never.
This is an astute and thoughtful piece. You, who have actually lived “in the belly of the beast” know well how the Demo/progressives ALWAYS play for keeps and for the long run. As a journalist in Washington for almost 40 years I was only too aware of how entrenched they are inside the bureaucracies and inside the staff cadre on the Hill. The end ALWAYS justifies any means for them. And one more thing, which too many people forget — as Obama so exquisitely demonstrates, they have no shame. No shame.
I think another reason they are going ‘all-in’, and have been since 2008, is we are watching their last stand.
No, we are watching the end game.
And with Hillary/Warren in 2016 they are right
“Sure, the Senate rules say that it takes a 2/3 vote to change the rules, but there is no way to enforce that if a majority of the Senate decides not to follow that rule. So, if the majority decides that you can’t filibuster a judicial nominee, then that is that as far as this Congressional session goes.”
I understand that but IMO those points do not address my argument. There is a difference between the willingness to abide by and enforce the Senate rules and, the existence of those rules. To be procedurally valid, Reid would have had to garner 66 votes to change the 60 vote requirement for judicial appointments and to end the filibuster rule. He did not do so, so in principle, any appointments he makes less a 60 vote approval are procedurally invalid in fact, despite being accomplished through force majeure ( n. 1. Superior or overpowering force).
That the minority hasn’t the power to enforce the rules, changes the existence of those rules not at all. By engaging in a procedurally invalid process, it by definition invalidates any appointments the Senate might make, absent a 60 vote affirmation.
malfeasance: law : illegal or dishonest activity especially by a public official or a corporation
Yes, it’s a given that they can’t stop Reid and the Senate democrats but they can serve notice that should they ever regain the majority, they will be impeaching any remaining Senators who supported this fiasco and any so appointed with malfeasance in office. Then drop the issue to minimize any ” spectacle that the supine media can cover that takes the attention away from Obamacare’s debacle”.
I am neither a constitutional nor a legal scholar but I believe my argument is logically consistent. The Senate is more than a simple ‘club’. Rule changes must be procedurally valid or a de facto state of lawlessness entails, for the mob has seized control of the levers of the ship of State. The mob may temporarily have the power but ‘right’ rests with those who oppose it on principle. Should those opposed ever regain the majority they are within their legal rights to hold fully accountable, those who ursuped the rule of law. I’m simply suggesting that the republicans make very clear the potential consequences that the Senate democrats and their appointees may face in the future and that should those circumstances arise, they will be impeached and then prosecuted.
“I think another reason they are going ‘all-in’, and have been since 2008, is we are watching their last stand.
“No, we are watching the end game.
And with Hillary/Warren in 2016 they are right” momo
Not to quibble but in the interests of accuracy, this is not the ‘end game’ this is perhaps the end of the middle game. So to with a successful Hillary ticket in 2016.
The start of the ‘end game’ is the declaration of nationwide martial law because a precondition to completing the left’s “fundamental transformation” of America absolutely requires that key provisions of the US Constitution be legally suspended.
There is legal precedent for doing so during times of national emergency and a crisis sufficient in scope as to require the declaration of nationwide martial law certainly qualifies.
The two most probable scenarios resulting in a crisis sufficient to the declaration of nationwide martial law with a plausible rationale for the suspension of key provisions of the US Constitution is the collapse of the financial infrastructure of the US and a successful nuclear terrorist attack upon one or more major US cities.
I find this very depressing and it would be the same if the Republicans had done this. When Obama won in 2012 I said to my wife that it was the end of the Republic. Being a good lib, she laughed at me. But that’s exactly what’s happening with this maneuver, we are becoming a pure democracy with all the pathologies that the Founders were afraid of.
The Congress is inching towards that point where it will be pure majority rule in the Senate as well as the House. When that happens it will be possible for a slim, and what should be transitory, majority that is ruthless enough to vote itself into permanent power, in effect one man, one vote, one time.
Paul in Boston:
I’m curious—does your wife see any problem with any of it now, or is she still on board with the program?
The start of the ‘end game’ is the declaration of nationwide martial law
I fundamentally agree with you, but …
I don’t think they need to declare martial law. Once they have Courts that are willing to ignore (or twist) the Constitution, they don’t need to suspend “key provisions of the US Constitution”. They will just ignore them.
We already see Obama having a willful disregard of the law.
Martial Law is a hard form of revolution or coup. What the the Gramscian/Dutschkian March Through Institutions allows them to do is have a soft revolution or coup. It allows them the ability to reshape behaviour without being as highly visible as a Stormtrooper. It is the nameless faceless bureaucrat that controls you with a form and a pen, instead of a gun. The gun gives the public something to legitimately fight against, whereas violence against the middle-aged woman behind the desk is unthinkable.
As to middle vs end game. I don’t think the terms really matter, but I disagree here too.
The point of the middle-game is to maneuver your opponent into a situation where they are doomed and incapable putting up meaningful resistance in the end game. That middle game was the Long March Through Institutions. The Left has taken over the institutions that regulate our lives and teach (indoctrinate) future generations.
The end game is the one party rule, rule by bureaucracy, domestic spying and soft totalitarianism we have now.
Think a bit deeper oh padawan.
Simply ‘ignoring’ key provisions of the US Constitution can only take the left so far. Ignore the first amendment and, foolish but idealistic liberals start to get very nervous. Liberals actually take the Bill of Rights seriously, at least when it suits them, take away their rights and they get quite upset.
The hard left fundamentally depends upon the low-info liberal voter’s quiescent political support.
“Fundamental transformation” of America is a euphemism. That is what liberals want to do, to create a utopia where all outcomes are equal. That however is not what the hard left aims for, “Their goal is to dismantle capitalism, one brick at a time, and for them to become the new nomenklatura in a social democratic state.” FredHJr
The Gramscian/Dutschkian March Through the Institutions allows the hard left to prepare the groundwork for a hard left coup but in order to achieve the hard left’s goals, they cannot avoid the necessity for a hard left coup. It is unachievable otherwise because a soft coup is always reversible, as to exist, it relies upon the cooperation of the public.
The end game of the leftist/liberal is one party rule, rule by bureaucracy, domestic spying and the soft totalitarianism we have now but that is not the end game of the hard left.
Here’s your hard left; Seattle’s newest councilmember urges Boeing workers to seize factories
The hard left knows that ignoring key provisions of he US Constitution will eventually result in widespread civil unrest. The proof of that assertion is the unprecedented arming of Federal departments that has taken place. The purchase of billions of hollow point ammo and the Obama DHS Purchase of 2,700 Light-Armored Tanks to Go With Their 1.6 Billion Bullet Stockpile can have but one purpose; the planned suppression of anticipated armed civil unrest.
They would not be anticipating such a scenario, if they believed that a soft coup was sufficient to their goals.
Geoffrey,
The only means to remove the judges is direct impeachment. Now, Congress has this absolute power, but the Constitution requires 2/3 conviction by the Senate.
A future Congress might try power of the purse approach to getting what are are considered “illicit” judges to resign their posts, but that is a Pandora’s Box, too.
As it stands, the Senate makes its own rules, and for all intents and purposes, the Senate just made its rules in this regard.
Carl Levin(to my surprise, delight & amazement) demonstrated historical knowledge and tradition, strength of character and respect. (Unless, of course, he knew his nay vote would be meaningless and, thus, risked nothing.)
I love what Charles the Great Krauthammer said on Fox News Thursday night: ‘The Democrats will soon rue the day they did this as they will have turned the Republicans into Sicilians once they have the majority back. No mercy will be shown.’
“The only means to remove the judges is direct impeachment.” Yansey Ward
Actually that’s not so, a commenter on another blog, the excellent The Optimistic Conservative (hosted by “a retired US Naval intelligence officer who served around the world, afloat and ashore, from 1983 to 2004.”) mentioned an alternative to impeachment;
a newly elected, Republican President and Republican congress with filibuster proof senate, and solidly Republican house could;
I was surprised by this and did some research. There’s nothing in the Constitution preventing the abolishment of the Federal courts by Congress and the President.
The repercussions would of course be severe but the option does exist.
Isn’t Holder’s trial in the DC court coming up soon? I think that’s a better explanation for the panic from the dems. If he’s facing jail, he most certainly will start spilling the beans concerning the criminality of the last few years and that will damage the party so badly they won’t be viable for decades.
Neo I agree.
Dems who decided the degree of nuclear option to employ are playing a long game. Also there’s a bit of ideological frustration. Recent events have rendered their strategic prospects in the next election cycle very low, so they (Obama/Reid) want to push as many judicial appointments thru as possible as they will long survive the likely coming Republican resurgence.
There’s no point to the legislative option given the veto at the House. However, should an opening appear at SCOTUS during Obama’s remaining term they will likely make it known to the Republican opposition to any liberal justice that they are willing to go nuclear in an attempt to preserve the filibuster under a Republican president.
And for just that reason Republicans should force them to set the precedent – the liberal will get appointed anyway – so that the next Republican president can take full advantage.
Neo,
She’s 100% on board. Her only sources of information are NPR and her colleagues in the department of national and international do-goodery. I avoid discussing these things because I prefer a happy private life to winning political arguments. Her belief is unshakable and she’s very good in a verbal argument.
@Geoffrey Britain
I agree with both of your points above:
–“The End” is most likely to come from financial collapse. It would take over a decade to do this politically; the market collapse will be faster and will impact everybody. (Disagree about a nuke…wouldn’t impact enough people to justify martial law)
–The structure of the courts (even the Supreme Court!) is wholly up to Congress. That’s why FDR could even threaten to “pack the court” in his day. It’s not necessary to do anything radical re: fixing the D.C. district court. Just say that their workload doesn’t justify that many sitting judges, and remove them in order of reverse-seniority. Bam! Problem solved. For further justification, you could use the procedural argument about 66 vs 51 Senators to change the rules.
I agree with Yancey Ward though, when he says the Senate rules are whatever the Senate says they are. SCOTUS WILL NOT intervene in that…they would be the first to admit they don’t have the power/jurisdiction. If the Senate has broken its own rules (and I agree with you, they have), nobody’s going to hold them accountable. In that respect, it’s a very “Obama-like” thing to do. That’s been his M.O. vis-a-vis Eric Holder since the start of this administration.
Speaking of which, @fiscalCliff:
Someone in the House is trying to move a bill to impeach Holder. But impeachment is just an indictment; the actual trial comes in the Senate. Harry Reid won’t even let the Dems be exposed to the embarrassment of voting for/against Holder. He will simply do what he always does: table the vote.
Still, I have this nagging feeling in the back of my mind. As if these explanations are all too easy.
I’ve heard people say that Dems (directed by Obama) want to pack the D.C. court because that’s the one that rules on most bureaucratic matters. People have offered EPA, etc. as examples.
But the thing that worries me is, “what if Dems DON’T lose the Senate in 2014?” Too many people are talking like it’s a done deal…but how might it not happen?
Voter fraud, supported by a bunch of highly questionable rulings from the D.C. court re: voter ID. Maybe?
It’s probably paranoia setting in, but it seems like Reid et. al. aren’t that scared. Almost like they know something…
Matt_SE,
I agree with much of what you say. I would point out that there’s no reason why terrorists would necessarily limit themselves to one nuke. How about NYC, LA, Miami and New Orleans on the same day?
What would lead to demands from Martial Law is the uncertainty that terrorist jihadists couldn’t do it again, especially if they threaten to do so, which seems likely once they’re successful.
Anyone who thinks that the Republicans regaining the Senate is even likely is engaged in wishful thinking. It’s 50/50 at best.
And even if they do, Obama still holds the power of the veto. At best, regaining the Senate without a strong majority is a holding action.
Matt_SE and Geoffrey Brittain:
That is why I wrote in my earlier post on the nuclear option:
I do not see a Republican victory in the Senate as anywhere near inevitable. But I do see it as possible.
Paul in Boston:
Oh dear.
You are probably making the right decision. I probably would not be able to hold my tongue. Very difficult position to be in.
I foresee such a train wreck that the GOP has every reasonable expectation to gain the Senate.
It’s going to be the sixth year of Barry’s stewardship. Look what happened to Bush in 2006,… and all other presidents.
They are virtually guaranteed to loose seats in both chambers.
As against that: we’re dealing with Chicago on the Potomac — the destroyer of worlds.
Neo,
It’s not too hard for me, I’ve always been very quiet and don’t talk much, and quite frankly, she’s more interested in friends and family than politics. It does get a bit hard to hold my tongue when some of her friends come over and start on the liberal talking points.
I do get complete dispensation on “climate change” since I have a PhD in physics and spent thirty years in three of the top US Physics departments. I like to say that climate scientists would have a hard time predicting high noon if you handed them an atomic clock and get away with it.
For what it’s worth:
If the Senate does away with the filibuster, then the party with a simple majority can do anything it wants; they don’t even have to bother listening to the minority. (Perhaps I exaggerate, because there
arewere Rules . . .) The voice of the minority is silenced. All the Americans who voted for Republicans have no say in the laws by which they will be governed.How many Americans have been silenced?
I went through the articles on Wikipedia for the 2008, 2010 and 2012 Senate elections and added up all the Republican votes and all the Democrat votes in each election to get the total votes for the current Senate. This isn’t scientific, and I might have made some errors, but my numbers show that Republicans got 47.85% of the votes in those three elections, and the Democrats, 52.15%.
So 47 percent of Americans have no say in the Senate. Like Obama, the Democrats “won.” And, as with Obama, the American people lost.
Well, they are the Democrat party, after all.
This is democracy on display. The majority rules, and the minority can suck it.
52% of the voters are made of humans, the other half is fake.
Out of the ones that are humans, they listen to a group of leaders that constitute 1-5% of the population. Those leaders listen to the Leader, in this case Obama and Reid Co.
So 1% controls the 52%. 52% controls the 99%. Democracy functions as it normally does.
And one more thing, which too many people forget – as Obama so exquisitely demonstrates, they have no shame. No shame.
Why would they feel shame? Should I feel shame for crushing ants underfoot?
They don’t feel shame for torturing, murdering, or raping us, because they don’t consider us humans. Only the Ruling Class are humans. The rest are slaves, property, livestock, and expendables.
People should clearly think on and accept this concept, else they will be obliterated in the war to come as they sit there frozen asking “why”.
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