By Stephanie Jones
Well, they finally did it.
Senate Majority Leader Harry Reid and the Senate Democrats, at long last, invoked the so-called “Nuclear Option,” thereby clearing the Republican logjam that stalled the confirmation process and opening the way for President Obama’s judicial and executive branch nominees to move forward.
Yet, although the Democrats had little choice but to take this drastic action, we’re now being treated to the amusing spectacle of Republicans, bolstered by certain hand-wringing political commentators, threatening and bellowing that the Democrats will “rue the day” that they unleashed this can of worms. This move, they claim, now opens the door to Republicans abusing the new rule when they regain the Senate majority.
Let’s be clear. This rule change was necessary solely because Senate Republicans took obstructionism to a new level.
Senate rules require the approval of a simple majority of Senators to confirm a judicial or executive branch nominee or to pass most legislation. However, in order to protect the rights of the minority, the Senate rules also required that 60 of the 100 senators must agree to close debate before a vote could be taken, a procedure called “cloture.” Failure to invoke cloture meant that the measure was “filibustered.”
In the past, cloture was a fairly routine procedure; usually even Senators who didn’t support a nomination or bill were willing to allow the matter to go to a vote on the floor. Occasionally, Senators filibustered when they believed there was a good reason, but this was usually reserved for rare instances.
A handful of these instances occurred during President George W. Bush’s second term, when the President nominated a number of extreme, out-of-the-mainstream judges. Yet, Senate Democrats were overly cautious about exercising the filibuster to block the confirmation of even the most unqualified and unsuitable judicial nominees. Their reason: concern that the Republicans would one day turn the filibuster against a Democratic president.
So, except in a few of the most egregious instances, the Dems rubberstamped nominee after nominee, helping President Bush populate the federal courts with right-wing ideologues, including Chief Justice John Roberts, who are now serving lifetime appointments. And in the few instances in which Democrats did muster up the courage and the votes to filibuster some of the worst nominees, Republicans screamed bloody murder, insisting that the filibuster was an anti-democratic abuse of power by the minority. They threatened to “blow up” the process with the so-called “Nuclear Option,” which would eliminate the filibuster for judicial nominees. They backed down only after the Democrats agreed to confirm some of the most objectionable nominees and to use the filibuster in the future only under “extraordinary circumstances.” In essence, the Democrats preserved the filibuster by promising never to use it.
Yet, surprise, surprise, when President Barack Obama began nominating judges, the Senate Republicans didn’t say “Democrats went out of their way to confirm President Bush’s nominees, so let’s do the same thing for President Obama.” Nor did they remain true to their insistence that the filibuster must be used only in the most extraordinary of circumstances. No. They instead whipped out the filibuster the Democrats had left largely unused and went to town, blocking everything and everyone they could.
According to the Congressional Research Service, 82 of the 168 cloture motions filed in our history have been filed in the last five years. In other words, nearly half of all of the filibusters in the history of the nation were launched by the Republican minority to block President Obama’s nominees.
For years, Senator Reid resisted calls to invoke the Republican’s nuclear option for fear of the precedent it would set. But eventually, it became clear, even to a cautious politician such as Senator Reid, that Republican obstructionism now threatened the very workings of our government. So the Senate voted to change its rules to require only a simple majority vote for presidential nominees – no longer can the minority use the filibuster to block a confirmation.
Republicans and pundits are now accusing the Democrats of going too far, blaming them for “escalating” gridlock and warning that any future bad behavior of the Republicans will be laid at their feet. But far from “escalating” gridlock, the Democrats stopped naively assuming, against all evidence to the contrary, that, if they just continued to play nice, the Republicans would return their kindness measure for measure. It was time to pull out the stops, protect the president’s prerogatives, and get the Senate back to work.
So, while it is likely that, once in the majority again, Republicans will continue to abuse the process and insist that the Dems made them do it, anyone who is actually paying attention will know better. Republicans don’t need a Democratic precedent to wreak havoc. They have been abusing the process for years and will continue to do so unless and until different, saner, more responsible Republicans are elected to the Senate. But, in the meantime, the Democrats had no choice but to put a stop to this madness.
Stephanie Jones is president of Stephanie Jones Strategies, a Washington, D.C. public affairs firm. She can be reached at firstname.lastname@example.org.