GOP's existential test: Why they're really escalating a nuclear option crisis

Republicans aren't just testing Constitutional limits -- they're making a gamble about their own political fortunes

Published November 20, 2013 6:31PM (EST)

John Boehner, Mitch McConnell                                                        (AP/J. Scott Applewhite)
John Boehner, Mitch McConnell (AP/J. Scott Applewhite)

Here are a couple questions with fairly obvious answers. (Spoiler alert, the answers are, "no," and "no.")

1). If Mitt Romney were president, would Senate Republicans deny confirmation to his D.C. Circuit Court of Appeals nominees based on a specious argument that the court's caseload doesn't merit a full complement of judges?

2). If Mitt Romney were president, and Senate Democrats were reverse court packing -- filibustering all of his judicial nominees, regardless of merit -- to prevent him from altering the ideological balance of the D.C. Circuit Court of Appeals, or any court, would Republicans stand for it?

I've tried to avoid this construction in the past because the case for Democrats nuking the filibuster right now is substantively very strong, and meta whining about the GOP's relative procedural extremism distracts from that argument.

But I want to make an exception today, because I think the obviousness of the answers to these questions suggests Republicans fully understand what they're doing, and are provoking a nuclear option crisis intentionally as a gamble on their own political fortunes.

If they call Harry Reid's bluff, they get to preserve the existing ideological balance on the court, which wouldn't be a bad outcome for them at all given how much power that court wields over Obama's regulatory regime.

But because the answers to the above questions are so obvious, Republicans must know they've put Harry Reid in an impossible position. It would be an act of political negligence, and of negligence to the constitution, for him to allow the minority to nullify vacant seats on the judiciary, simply to deny the president his right to leave an ideological imprint on a court. The logical extension of the GOP position -- that “there is no reason to upset the current makeup of the court" -- is a semi-permanent suspension of all appellate and Supreme Court confirmations. A permanent filibuster, undertaken in the hope that, through retirements, the courts will wither into more favorable balance.

That's clearly untenable. Republicans know they've given Reid practically no choice. And if he goes nuclear it might prove to be an even better outcome for them. It will provide them a plausible rationale for taking things a step further if they win back the Senate in 2014. Getting Democratic fingerprints on the nuclear rule-change precedent, will provide Republicans the cover they'll need to eliminate the filibuster altogether in January 2015.

They aren't just testing the limits of Constitutional norms for fun. They're testing Reid's faith in the durability of his majority.

To review quickly: On Tuesday, Senate Republicans rounded out their serial filibusters of President Obama's three nominees to the D.C. Circuit Court of Appeals. On Wednesday, a Senate Democratic Leadership aide floated the possibility that Dems will change the Senate rules to prohibit filibusters of most presidential nominees before Thanksgiving.

When we went through a similar Kabuki production earlier this year over several executive branch nominees whom Republicans were blocking to cripple federal agencies they don't like, Reid gathered 51 votes to change the rules and Republicans relented before he pressed the red button.

That was July, though. A lot's changed since then. We're four months deeper into Obama's second term. The turbulent rollout of the Affordable Care Act has exacerbated the vulnerabilities of several Senate Democrats. 2014 was always going to be a challenging election cycle for Democrats. But back in the summer, their position was strong enough that several Republicans defected to help Reid break the filibusters and fill key administrative vacancies. The stakes are admittedly higher now -- federal judgeships are lifetime appointments. But this time around almost all of those Republicans have returned to the fold, including members like Sen. John McCain, R-Ariz, who just a few months ago were heralding a new era of advise and consent normalcy.

Perhaps these veteran Republicans changed and re-changed their minds about basic balance of power questions over the course of a few weeks, in the same way that Romneycare transubstantiated in their imaginations from a signal GOP accomplishment into a socialist rationing scheme on January 20, 2009.

I think it's more likely that Republicans have caught Democrats at a moment of political weakness, and are offering them a Sophie's choice between foregoing any filibuster reforms -- a major devolution of power to the Senate minority -- and priming the political system for a more dramatic rules change next year. Republicans are bug-eyed at Democrats' current political misfortune. If the majority is their's for the taking, as many of them suspect, why not get Harry Reid to do some of their dirty work for them. Then they can really escalate their assault on President Obama's legacy.

But it's really more like a Hobson's choice. Doing nothing will create a huge incentive for Republicans to block many more nominees almost by definition. Not filling the vacancies on the D.C. Circuit will pose a risk to Obama's legacy in and of itself, even if going nuclear now is a prelude to a narrow GOP Senate majority, and the total end of the filibuster, in 2015.

And that's to say nothing of the possibility that Republicans will eventually nix the filibuster anyhow, or the compelling proposition that ending the filibuster would be a good thing for the country in the long run.

So Democrats don't need to get too psyched out about any of this. Recent statements from skeptical institutionalists like Sens. Dianne Feinstein, D-Calif, and Barbara Boxer, D-Calif, suggest they know inaction isn't really an option. And if they change the rules, fill the vacancies, and Republicans fail to take back the Senate next year, Obama and the Democrats will have a much smoother final two years together than they otherwise would, and Republicans will have only themselves to blame.

By Brian Beutler

Brian Beutler is Salon's political writer. Email him at and follow him on Twitter at @brianbeutler.

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