‘Nuclear option’ for Supreme Court nominees will damage Senate

Democrats may be on the verge of reaping the bitter harvest of the seeds sowed in November 2013.

The then-majority Democrats used a controversial parliamentary gimmick to unilaterally reinterpret existing Senate rules. By use of the so-called “nuclear option,” they established the principle that a simple majority in the Senate can overrun any rule at any time.

{mosads}It is often written that the Senate Democrats led by then-Majority Leader Harry Reid (D-Nev.) “changed” the filibuster rule as it applies to judicial nominations (with an exemption for Supreme Court nominees).

They did nothing of the sort.

Democrats, by fiat, altered the way the Senate interprets Rule XXII, which governs the procedure for cutting off debate and ending a filibuster. The rule continues to prescribe that when a cloture vote occurs, the question must be put, “Is it the sense of the Senate that the debate shall be brought to a close?”

It goes on to state that cloture is invoked if “the question [is] decided in the affirmative by three-fifths of the Senators duly chosen and sworn.”

Reid raised a point of order, claiming that the words “three-fifths” mean “a simple majority.” The presiding officer, Sen. Patrick Leahy (D-Vt.), on the advice of the Senate parliamentarian, rejected the point of order.

However, the majority, by a 52-48 vote (three Democrats voted “no”), was able to overturn the ruling of the chair, creating the new precedent that “three-fifths” or 60 senators means a simple “majority.”

It doesn’t take difficult math or much knowledge of the English language to see that this is ridiculous.

The Democrats paved the way. Now in the minority, early in the 115th Congress, Democrats will be confronted by a Supreme Court nominee chosen by President Donald Trump.

They won’t like it. If nothing else, they will rightfully feel that the nomination legitimately belonged to President Obama. The Republicans stonewalled it for 10 months. Democrats will believe that the seat was stolen and that the Trump nomination is therefore illegitimate.

Consequently, a filibuster may occur. This could cause Majority Leader Mitch McConnell (R-Ky.) to trot out the nuclear option precedent and try to extend it to cover the Supreme Court, allowing the GOP to cut off debate and use its majority to confirm the nomination.

This will enrage the Democrats. The nuclear option, which Vice President Joe Biden, while a senator, called “a lie about a rule,” was given its label by former Rules Committee Chairman Trent Lott (R-Miss.) in 2005 because Democrats were threatening that if the Republicans used the ploy to overcome their filibuster of several George W. Bush-nominated judges, the angry Democrats would bring the Senate to a halt by obstructing everything.

The bitterness created by the twin outrages of eliminating the right to filibuster a Supreme Court nominee, coupled with the unprecedented and constitutionally suspect stonewalling of Obama’s nominee, Merrick Garland, will further polarize an already deeply torn Senate.

In October, when it seemed possible that the Democratic nominee, Hillary Clinton, would be the next president, Republicans Sens. Ted Cruz (Texas), John McCain (Ariz.) and Richard Burr (N.C.) were threatening to block any Clinton nominee. The Democrats’ vice presidential nominee, Sen. Tim Kaine (D-Va.), in turn hinted that if that happened, Democrats would use the nuclear option to thwart a filibuster.

I wrote then in The Hill:

In my judgment, it would be tragic if the indefensible behavior suggested by McCain (who should know better) and Cruz provokes a new Democratic majority to rewire the Senate rules to overcome a Republican wall of partisan intransigence.

In the future, any president backed by a partisan Senate majority would no longer have to consider the views and seek the votes of at least a handful of members of the opposition party. He or she would be free to select the most ideologically pure candidate.

In 2010, just a few months before his death, Sen. Robert Byrd (D-W.Va.) declared that:

“If the rules are abused, and senators exhaust the patience of their colleagues, such actions can invite draconian measures. But those measures themselves can, in the long run, be as detrimental to the role of the institution and to the rights of the American people as the abuse of the rules.”

The Senate now finds itself in a dilemma. The leaders of both parties — McConnell and Democratic-leader-to-be, Chuck Schumer (D-N.Y.) — are, I believe, both institutionalists who along with other senior senators of both parties will be reluctant to force the expansion of the regrettable nuclear option. They will fear damaging the Senate and risking a permanently partisan and polarized future for the Supreme Court.

But with the stakes so high, it will difficult to avoid the worst outcome. Damage to both the Senate and the court hangs in the balance.

Hopefully Senate leaders can find a way out.

Arenberg worked for Sens. Paul Tsongas (D-Mass.), Carl Levin (D-Mich.) and Majority Leader George Mitchell (D-Maine) for 34 years and is co-author of the award winning “Defending the Filibuster: The Soul of the Senate-Revised and Edited Edition.” He is a visiting professor of political science and international and public affairs at Brown University.

The views expressed by contributors are their own and not the views of The Hill.