Democrats go nuclear– and it’s good for Democracy

Hooray, Democrats grew a spine today.  The Republicans really left them no choice.  If elections mean anything, it means that a president should be able to fill judicial and executive branch vacancies with reasonable appointees.  The Republicans have essentially been seeking to nullify the results of the 2012 presidential election.  Sure, that sounds hyperbolic, but functionally speaking, that’s what filibustering pretty much every nominee means.  The Republicans have not suggested that the nominees are even unqualified.  They simply don’t like the idea of this president making appointments of people with whom he has ideological agreement.  Now, that’s nuts.  And nuts enough that even the ever-so-cautious Democrats in the Senate have finally had enough.  The Republicans are all saying how Democrats will regret this when there’s a Republican president and a Democratic Senate minority.  And maybe so.  But the upshot of allowing the executive branch and federal judiciary to properly function now is surely worth the cost of some more extreme Republican appointees in the future.  Many executive agencies need certain political appointees to actually be allowed to carry out their legal duties and when Republicans filibuster all appointees to these agencies, they are effectively preventing them from doing their job.

I like Chait’s explanation on why the “nuclear option” is the logical outcome now:

The main reason for this odd, partial clawback of the filibuster is that President Obama has no real legislative agenda that can pass Congress. At the beginning of the year, it seemed plausible that House Republicans might go along with immigration reform, but even that possibility now looks remote. Nothing can pass.

That reality means two things. The first is that President Obama’s second-term agenda runs not through Congress but through his own administrative agencies. His appointees are writing rules for financial reform, housing policy and — the potentially enormous one — climate emissions. Senate Republicans have tried to stymie this agenda by blocking executive-branch appointments, most recently filibustering the nomination of Mel Watt to run the Federal Housing Finance Agency. The executive-branch filibuster has become a primary Republican weapon against Obama’s agenda.

Their next line of defense is the D.C. Circuit, the federal court that handles regulatory cases. If and when the Environmental Protection Agency issues regulations on existing power plants, the D.C. Circuit will rule on their legality. Republicans had announced their intention to block any Obama appointment at all to the court’s three vacant positions in order to protect their party’s functional majority. (The court is currently split evenly, but it sends its overflow caseload to retired judges, who are mostly Republican.) The D.C. Circuit is where Republicans had hoped to block those parts of Obama’s executive agenda they couldn’t gum up by denying the agencies a functioning director…

The longtime counter-threat against the “nuclear option” has always been that the minority party will retaliate by wantonly blocking everything that passes through the Senate. But here is the second way in which the end of Obama’s legislative agenda has forced the nuclear confrontation. With immigration reform dead, or nearly dead, the Senate Republican retaliation amounts to threatening to burn down a building that is already in ashes.

Chait also points out one of my first thoughts on the fact that the rule change preserves the filibuster for Supreme Court appointments.  If a liberal justice retires and is replaced by Obama, the Republicans won’t bother with a filibuster.  However, if the unforeseen happens and Obama gets to replace one of the conservative justices, I guarantee you there will be a filibuster.  And I mostly guarantee you that Democrats would at that time end the SC judicial filibuster as well.

On a related note, I hated the WP article on this for focusing on just how “unprecedented” the Democrat’s actions are:

Many Senate majorities have thought about using this technical maneuver to get around centuries of parliamentary precedent, but none has done so in a unilateral move on a major change of rules or precedents. This simple-majority vote has been executed in the past to change relatively minor precedents involving how to handle amendments; for example, one such change short-circuited the number of filibusters that the minority party could deploy on nominations.

You know what else is unprecedented?  Using the filibuster to stop all judicial nominees to a vacancy regardless of the nominee (when the Democrats did this to Bush nominees, they did not object to Bush filling vacancies, simply Bush’s most extreme appointees– and they eventually gave in on that).

About Steve Greene
Professor of Political Science at NC State

One Response to Democrats go nuclear– and it’s good for Democracy

  1. Mike from Canada says:

    “If a liberal justice retires and is replaced by Obama, the Republicans won’t bother with a filibuster.”

    Why do you think the Republicans would not filibuster a liberal appointment to a liberal loss on the bench? After Roberts ruled in favour of Obama on the ACA, I would think they would want another Republican regardless. It’s not as if they are concerned about looking “fair” in the public eye. It looks to me that Republicans believe they can push anything with the right talking points.

    Or was leaving the SC rules as it was just an attempt to mitigate the screaming from the romper room?

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