Senate About to Enter "Nuclear Option" Death Spiral
Is there any hope of pulling out of the "nuclear option" death spiral before the Senate inflicts permanent damage upon itself and the Supreme Court?
Democratic and Republican leadership in the Senate is in the process of accelerating that spiral.
For his part, Minority Leader Chuck Schumer (D-N.Y.), urged on by the progressive wing of his party, has declared his intention to hold the nomination of Neil Gorsuch to a 60-vote standard. This is widely understood as a threat to launch a filibuster. Under Senate rules, ending such a filibuster will require three-fifths of the Senate: 60 votes.
Majority Leader Mitch McConnell (R-Ky.) has raised the temperature by declaring his intention to hold the confirmation vote on Gorsuch prior to the Easter recess set to begin on April 7. McConnell signaled his willingness to take extreme steps to accomplish that confirmation, asking, "If Judge Gorsuch can't achieve 60 votes in the Senate, could any judge appointed by a Republican president be approved with 60 or more votes in the Senate?"
It might be asked in return, if the president's party alone controls Supreme Court nominations, what would restrain him from extremely ideological partisan choices?
The intensity of the confrontation and the danger it represents is enhanced by the history in the Senate of hyper-partisan warfare over the past three decades.
In 1987, led by then-Sens. Joe Biden (D-Del.) and Ted Kennedy (D-Mass.), the Democratic majority successfully rejected President Reagan's nomination of Robert Bork to the Supreme Court. This was accomplished without resort to a filibuster, by an up-or-down vote of 58-42.
Republicans were outraged. Reagan labeled the Senate Democrats a "lynch mob."
Between 2001 and 2005, Democrats blocked 10 federal appeals court nominees of President George W. Bush, first as the Senate's majority and beginning in 2003 when they became the minority, by successful filibusters.
It was during this period that the label "nuclear option" was born. Efforts to tame the filibuster were not new. In fact, they dated back into the 19th century.
But, in 2005, Republican Majority Leader Bill Frist (R-Tenn.) began threatening to use questionable parliamentary maneuvers by the majority to twist the Senate's rules. This involved having the presiding officer declare by fiat that a simple majority, rather than a two-thirds vote, was necessary to end debate on any amendment to the Senate's rules.
Enraged Democrats declared that if Frist actually carried out this plan, they would use every rule, procedure and precedent possible to bring the functioning of the Senate to a screeching halt. Then-Rules Committee Chairman Trent Lott (R-Miss.) named this threat by the Democrats the "nuclear option."
Over time, the popular understanding of "nuclear option" has been attached to the simple-majority parliamentary ploy itself.
The crisis posed by the use of the nuclear option was avoided by a pact forged by a bipartisan group of senators who became known as the "Gang of 14." The 14 senators (seven from each party) — among them current Republican Sens. John McCain (Ariz.), Lindsey Graham (S.C.) and Susan Collins (Maine), were a sufficient number to deny the Democrats the ability to continue their filibusters and deny the Republican majority sufficient votes to carry out the nuclear option.
The agreement hinged on the promise not to filibuster future nominees except in "extraordinary circumstances." While it was never clear exactly what that phrase meant, it worked successfully for a number of years. Like the word "pornography," extraordinary circumstances were hard to define, but you knew it when you saw it.
The restraint set in place by the Gang of 14 in 2005 fell apart five years later when Republicans began blocking President Obama's appointees. The Democratic majority began threatening use of the nuclear option, but a series of understandings, agreements and compromises between the Republican and Democratic leaders delayed its use for awhile.
However, in November 2013, the circumstance came to a head. Republicans had been filibustering four nominees to the important D.C. Circuit Court without any particular objection to any of the nominees. They merely sought to deny "control" of the court by Democratic appointees.
Then-Majority Leader Harry Reid (Nev.) pulled the trigger. The nuclear option was used to create a precedent allowing a simple majority to end debate on judicial nominees except for the Supreme Court. It was the Republican minority's turn to be enraged, particularly when the new precedents were used to confirm more than 100 Obama judges to the district and circuit federal courts.
As soon as Republicans regained the majority in 2015, they retaliated by bottling up many of Obama's judicial appointments. This reached a peak when they broke all precedent to deny Obama's last Supreme Court nominee, Merrick Garland even a hearing for nearly a year, permitting Republican President Trump to fill the seat instead.
The future of the Senate is at stake. But in damaging itself, merely for shortsighted short-term gain, the Senate damages the Supreme Court also. If nominations are to be one-party affairs when the president's party controls the Senate and a president’s nominees are to be held hostage until the next election when it does not, the Supreme Court will become permanently politicized and polarized.
Its credibility and authority will be forever compromised.
Richard A. Arenberg worked for Sens. Paul Tsongas (D-Mass.), Carl Levin(D-Mich.) and Majority Leader George Mitchell (D-Maine) for 34 years and is co-author of the award-winning "Defending the Filibuster: The Soul of the Senate." He is a visiting lecturer of political science, and international and public affairs, at Brown University. His work has appeared in The New York Times, The Washington Post and The Boston Globe. Follow him on Twitter@richarenberg.