Republican senators are set to meet today to figure out one of those big things they need to figure out before the next Congress: whether to undo the "nuclear option" on executive and judicial nominations.
This was procedural maneuver that majority leader Harry Reid made, finally, about a year ago, eliminating the 60-vote threshold to invoke cloture on judicial and executive branch nominations (except for Supreme Court justices). Reid triggered the move after years of Republicans filibustering more or less every nominee of any import for no reason other than to irritate Democrats and gum up the work of agencies and benches that Republicans do not care for. It was a much-needed modernization of the chamber's rules in a polarized age. The Senate is a flawed chamber; its functionality rests on good faith and collegiality among senators. That means that whenever senators realize that they can act in bad faith and get away with it -- blocking every nomination just for kicks, for example -- the only response is to eliminate some of the old gentleman's club rules. The nation has survived.
Early reports suggest that the GOP conference may well preserve Reid's rule change in the next Congress. They could make a big show of restoring the 60-vote threshold and "the dignity of the Senate" for the next two years if they wanted to, but if they win the presidential election in 2016 and hold onto the Senate, they're going to want to get rid of it again.
As Sen. John Thune says, it's "not practical" to restore this measure that they'll want to get rid of the next time they have the Oval Office and a Senate majority. Others concur. Perhaps most remarkably is Sen. Orrin Hatch. "I am as much a Senate institutionalist as anyone," he writes before entering a convoluted argument about how restoring the proud institutional gimmick that is the filibuster would... allow the Democrats to break it again!
The incoming Republican majority must honor our promise to restore the Senate to regular order and reclaim the mantle of “world’s greatest deliberative body.” To do so, we must renew our commitment to substantive debate and an open process for amending legislation. But returning to the pre-nuclear option filibuster rule would serve neither the interests of the Senate as an institution, nor constitutionally limited government more broadly. [...]
Because Republicans will soon control the Senate and its committees—and can therefore slow or block controversial nominations by other means—the rule is irrelevant for the next two years. And readopting a 60-vote threshold for nominees now is unlikely to do much good in the long run. By taking the extraordinary step of eliminating nomination filibusters by a bare majority vote, Senate Democrats demonstrated nothing short of contempt for that standard. A temporary return to the 60-vote threshold would last only until the next Democratic majority found abolishing the rule in its political interest.
That's cheeky of Senator Hatch to avoid any mention of how the "nuclear option" might serve in the Republicans' political interest in two years. Surely that never entered into the Great Institutionalist's thinking. Nope, it's just, we would restore dignity to the institution, but um, the Democrats would just eliminate the dignity, later, and so we ought to pass on the whole dignity-restoration thing.
Senator Chuck Grassley, too, is "leaning toward leaving it alone," and also blames Democrats for creating the bad-faith environment. "I served 34 years in the Senate, 20 was under pretty much an environment where filibusters weren’t used against judges," he said. "That changed in 2002, I guess. I don’t think it’s been good for the process." His timeline of when the intensity of filibustering nominees really picked up may be off, but at least he's admitting that it's been completely abused in recent years and there's no point in bringing it back.
I'm all in favor of the filibuster on nominations remaining off the books, forever, regardless of who controls either the Senate or the White House. It just became a bad rule. While it's good to see senators like Thune, Hatch, and Grassley come around to this reality, it needs to be remembered that the "nuclear option" was something that they said, one year ago, would destroy the Senate. Mitch McConnell's people even made a clip-art graphic of Harry Reid's tombstone engraved with "Killed the Senate." And now they're leaning towards keeping it.
Good for them. But enough with the "dignified institutionalist" crap. The Senate is a short walk from where I'm working and last I checked, it was still there. And it has just as little dignity as it had before the "nuclear option" or will have for the foreseeable future.