The Nuclear Option, or Getting Burned By Your Own Scorched Earth Politics

As an Amerjcan Political Scientist who teaches American Government, I’m professionally and contractually obligated to both hold and express an opinion on the Senate Democrats’ actuon to eliminate filibustering of presidential nominees. That opinion is expressed most succinctly in this video:
But I also have a professional and contractual obligation to pontificate, so let me expand upon that.

The press love to call this the nuclear option purely for the cataclysmic sound. Of course it’s not cataclysmic at at all, but nuclear is not a bad description if we keep in mind that nukes are strategic weapons, and this is a strategic move. Or perhaps it’s best to think of it as a battlefield tactical nuke.

Soldier with a Davy Crockett Battlefield Tactical Nuclear Weapon. The rumor that the soldier's name is Harry Reid remains unconfirmed.

Soldier with a Davy Crockett Battlefield Tactical Nuclear Weapon. The rumor that the soldier’s name is Harry Reid remains unconfirmed.

It’s no secret that the use of the filibuster has been growing, as shown in this graphic I’ve nabbed from Ezra Klein (thanks Ezra’s research staff!).breakingthefilibuster I’ve previously criticized the current state of the filibuster, and I think it’s particularly egregious to use it to block presidential nominations. Legislation is Congress’s business, and they get to set the rules of their own procedure. Appointments are a combination of Senate and Executive business, and while the Senate still does get to set its own rules of procedure–and while they indeed ought to exercise their authority to check and balance the executive–what counts as a legitimate procedure is, I think, affected by the fact that they are dealing with another branch, and not just that branch’s prerogative but that branch’s constitutional duty. Using minority rule to force another the executive to conduct its constitutional obligations in a way suitable to the minority is not clearly democratically legitimate.

And Senate Minority Leader Mitch McConnell agrees with me.

“The Constitution of the United States is at stake. Article II, Section 2 clearly provides that the President, and the President alone, nominates judges. The Senate is empowered to give advice and consent. But my Democratic colleagues want to change the rules. They want to reinterpret the Constitution to require a supermajority for confirmation.”

It’s such an important issue that former Republican Senator Trent Lott advocated changing the rules to disallow filibusters on presidential nominees.

The Hill quoted Lott using the term in a May 21, 2003, article: “‘I’m for the nuclear option,’ said Lott. ‘The filibuster of federal judges cannot stand.’” And a June 25, 2003, Roll Call article quoted Lott saying of the nuclear option: “I am an advocate of that … The Democrats are going to stop this or we are going to have to go nuclear.”

Thus, the Nelsonesque laughter at Mitch McConnell and his band of wary angsters bemoaning Reid’s “naked power grab.” They proposed it, and now they pretend shock that anyone would actually do it (shades of the Heritage Foundation’s and Obamacare’s individual mandate!).

Look again at the graphic showing the number of filibusters. The Democrats are guilty of abusing it as well, and the Republicans were quite right back in Lott’s day to criticize them for it. But look how the numbers have increased in the past few years. The Republicans have blundered into this, and have no one to blame but themselves. They seem to have thought that despite past warnings from both sides about the overuse of filibusters, and past threats from both sides about the exact method of response, they could push the use of the filibuster ever further without ever inciting an actual response. Whether they thought the Democrats could never be goaded into responding or whether they’ve developed such a sense of entitlement that they think minority governance–when they are in the minority–is an unassailable right is something I can’t discern. But there’s no doubt that they’ve made yet another strategic blunder as a consequence of misreading the political landscape.

Republicans are warning the Democrats that this will come back to haunt them, and that is correct. The hesitation by either side to take this step has been based on wanting to preserve the appointment filibuster capacity for the next time they’re in the minority. But in the end, that’s small potatoes compared to the need to be able to actually govern when you have a majority. (And if the Democrats are reading the political landscape as I am, it may be some time until the GOP can manage a Senate majority again, anyway.) And all that’s really being lost is something both sides have previously agreed is an undesirable–some say unconstitutional–tactic.

In a nutshell, the real story here is one of bad strategy. If you want to play scorched earth politics, you’d better make sure you’re the one with the real firepower, or else you’re going to get burned.

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About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
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5 Responses to The Nuclear Option, or Getting Burned By Your Own Scorched Earth Politics

  1. Troublesome Frog says:

    I’m a little surprised that they went through with it, even on this one issue. I remember a saying along the lines of, “You can only really understand how the Senate functions if you realize that every senator wakes up in the morning, looks in the mirror, and says, ‘Good morning, Mr. President.’” The ability to exercise individual power and grab the spotlight whenever they want is a key piece of why senators like being senators. Giving up the ability to gum up the works just turns them into a rabble of voters like the rest of us. Intolerable.

    Anyway, I’m generally happier if the ideological balance of the federal judiciary is determined by the variable “who wins more elections” rather than the variable “who is more willing to ruthlessly exploit procedural loopholes.”

  2. Scott Hanley says:

    If Ezra Klein is right, the D’s have calculated that they would never get to use the filibuster anyway, should they become the minority again. They don’t believe the R’s have any respect for rules, traditions, or institutions, but would do whatever secured an immediate advantage and increased their power at the moment. So there’s nothing to lose by doing it themselves, especially when the worst-case scenario seems to be two years in the minority when they still hold the White House and have enough strength to sustain a veto.

  3. Troublesome Frog says:

    Right, that’s the other issue. Taken to an absurd extreme, assume that party control switches back and forth regularly and everything is fillibustered. The vacancy list increases with each iteration, and so does the incentive to go nuclear and fill all of the vacancies. Once that happens, the minority party’s only option is to say, “Damn. We should have done that last time around instead of waiting for them to strike first.” Think it’s bad that the other party may get unfettered control? The only worse possibility is that he gets unfettered control and gets to fill all of the vacancies that you didn’t fill when you were in charge.

    Interesting experiment: Get two players and put a dollar between them. Player A is given the option to take the dollar. If he doesn’t, add a dollar to the pile and then give Player B the choice to the whole pile or pass. Continue until one person finally grabs the cash. If you know you’re going to play this game once, what factors do you consider when deciding on a strategy?

  4. D. C. Sessions says:

    Here’s one even more to the point regarding executive appointments:

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