This post posits what is of course still a hypothetical: a Hillary Clinton presidency.
We don’t know that she will be elected. It is not impossible that Trump could win the whole thing. It is just highly unlikely, and I really don’t think it will happen. So I’m speculating on what I think will happen, knowing that the future is full of unknowns.
When Barack Obama was elected in 2008, one of the difficult things for conservatives was that he had a compliant Congress to do his bidding. The Republicans had done so very poorly that they didn’t even have the 41 votes necessary to stop liberal legislation in the Senate, although they finally gained exactly that number with the surprise election of Scott Brown of Massachusetts (although it couldn’t stop Obamacare because the Democrats used the technique of reconciliation to pass it).
However, despite what some people say, the Republicans in Congress were able to stop some of the Obama agenda after they gained the ability to muster at least 41 votes in the Senate, and after they gained the House in 2010. That’s why the Democrats in the Senate triggered the nuclear option for judicial appointments in November of 2013, when they still controlled both the presidency and the Senate but the Republicans had gained enough senators to block judicial confirmation under the old (non-nuclear) rules.
When the GOP took control of the Senate in 2014, the nuclear option ceased to make sense, because the GOP could now block Obama’s appointments without it (which they did for Obama’s attempt to put Garland on the Supreme Court). And it was not just Garland they stopped, either; there were others, but you don’t hear much about that from the people on the right whose self-appointed task it is to tear down the so-called GOPe as do-nothings.
A lot of people probably didn’t remember that the nuclear option had already been used that way by the Democrats in 2013 for judicial appointments (I barely remembered it myself, and I’m a blogger), but it had been. That’s why it should have been no surprise at all when Harry Reid mentioned recently that the next Senate will probably activate the nuclear option for judicial appointments, too. Most Americans who don’t follow the details of politics probably don’t pay attention to the ins and outs of this, but the bottom line is that the motivation to activate the nuclear option comes into play when a president and Senate are controlled by the same party, but the opposition party has more than 41 votes in the Senate.
That’s one of the reasons why which party controls Congress is exceedingly important, and why gridlock can be a good thing when a president whose agenda you distrust and/or fear has been elected. And that’s why the possibility of Trump’s negative coattails in 2016 looms large. If Hillary Clinton becomes the next president and the Democrats take control of the Senate with the GOP retaining more than 40 seats, that’s when the nuclear option for judicial appointments (the thing Reid is referring to) would once again come into play.
Recently Reid has only been talking about the using the nuclear option for judicial appointments rather than for votes on more general issues in the Senate, and there’s a reason for that. The reason (IMHO) is not that Reid and/or the Democrats in Congress would be so loathe to exercise their full power because they respect the institution of the Senate and its moderating traditions too much. The reason is that, without control of the House as well as the Senate and presidency, it wouldn’t do the Democrats much good to exercise the nuclear option for other things because normally legislation needs to be approved by both houses of Congress. And the reason the nuclear option for judicial appointments is tempting even when a party controls only the Senate and the presidency but does not control the House is that House approval is not needed for federal judicial appointments, which are confirmed by a vote in the Senate only.
That’s not rocket science, but it’s a bit complicated and requires a certain interest in politics to follow and understand, and it’s easy to forget some of the details. That’s one of the reasons it’s easy for people to get the wrong idea about what’s possible and what’s not possible in the interactions between Congress of one party and a president of another party. It also makes clear why the situation in which Hillary would be president and both houses of Congress would be in Democratic hands (similar to what occurred at the beginning of Obama’s first term in office) is to be very much feared.
My hunch is that if Hillary is elected president and the Democrats were to end up with majorities in both the Senate and the House (something I don’t think will happen, but which is important to prevent), there is a good chance that Democrats would invoke the nuclear option not just for judicial appointments, but more generally, in order to maximize Democratic power to do things without interference from the 40+ GOP senators. Those 40+ GOP senators would really be the only thing potentially standing in their way, except a Supreme Court that is highly unlikely to do oppose them. However, if the GOP retains the House (which is likely to do), the Democrats would probably retain the nuclear option for judicial appointments only, because on other issues the House would retain its ability to thwart the Democratic aims to a certain extent.
Of course, a President Clinton could do as Obama did—which was to go around Congress and use executive power as much as possible, and dare the GOP to stop him/her.
All of this just further drives home the fact that, whoever you choose to vote for at the top of the ticket, it is exceedingly important to go to the polls and vote for Republicans in Congress. And it also explains why Ted Cruz has been busy saying that a Republican Senate could and would continue to block any Hillary SCOTUS appointment, just as they did after 2014 with Obama.
In summary, assuming a President Clinton, it is of the utmost importance that the GOP holds the House, which it seems likely to do. But the Senate outlook is very iffy—so please make sure to vote and not stay home.





