Why the “Nuclear Option” is Bad for Politics

(Flickr / Phil Roeder)

(Flickr / Phil Roeder)

On election night, 2007, newly-elected President Barack Obama remarked, “Tonight, you voted for action, not politics as usual.”

Now six years later, this statement only adds another broken promise to the list.

The Senate Democrats last week engaged in the worst kind of politics, the type that says if you don’t agree with us, we don’t care about you.

In an unprecedented move, the Senate Democrats used the “nuclear option” to change the Senate rules. Presidential nominees for most federal judicial positions will no longer require 60 votes to proceed. Instead, a simple majority is all that is needed to move to a confirmation vote. Specifically, these actions came as the president was trying to appoint three new judges to the court that reviews most of the government’s regulations, the D.C. Circuit Court of Appeals.

This means the majority party will have the power to ram through any appointments they wish, without consideration for the other side’s objections. This almost entirely eliminates the incentive for choosing nominees that are acceptable to both parties, allowing the courts to become more politicized.

The Democrats’ real motivations were hidden behind a facade of pragmatism. Claiming the courts are overburdened, the Democrats argued that more judges were needed to increase efficiency in the D.C. Circuit Court of Appeals.

But the Wall Street Journal effectively exposes this flimsy rhetoric, reporting,”For the 12-months ending in September, the D.C. Circuit had 149 appeals filed per active judge. By comparison, the 11th Circuit had 778 appeals filed per active judge for the same period.” The Journal argues that Democrats are simply engaging in a “political power play” by packing “the most underworked appellate circuit in the country.”

Senate Democrats, led by Majority Leader Harry Reid and supported by President Obama, claim that Republicans’ obstructionism is adequate cause for suppression of minority rights. But the Republicans are right to obstruct unnecessary judge appointments if the D.C. Circuit does not really need them.

Furthermore, the nuclear option is a haughty assertion of raw power, telling those who disagree that their opinions are not valuable. It’s a continuation of the mentality of Obama’s first chief of staff, Rahm Emanuel. When the first stimulus bill was passed (with no Republican votes) in 2009, Republicans offered to make the bill a bipartisan effort by providing their input as well.

Emanuel’s response was to completely ostracize Republicans, claiming their involvement was worthless. “We have the votes,” he said, following that comment with an expletive directed toward Republicans.

This total derision of dissenting opinions has continued throughout the entire Obama presidency – during the healthcare debates, fiscal cliff negotiations, and now presidential appointments.

Eight years ago, on the Senate floor in 2005, then-Sen. Obama remarked, “What (the American people) don’t expect is for one party, be it Republican or Democrat, to change the rules in the middle of the game so they can make all the decisions while the other party is told to sit down and keep quiet.”

It sounds like the Obama of 2013 should have listened to his own advice in 2005. The Senate Democrats’ move last week was a dangerous blow to bipartisanship and the rights of the minority.

Originally published at Communities at WashingtonTimes.com.

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5 responses to “Why the “Nuclear Option” is Bad for Politics

  1. I totally agree that the nuclear option is very bad for politics.

    However, I’m disappointed about your less than even-handed approach to commentary on the issue. Let’s not forget that Republicans, under the previous president, seriously considered this option as well. Kudos to them for not carrying out the threat.

    Secondly, let’s not forget that obstructionism is escalating. Thirty percent of all the cloture votes in the history of the Senate have occurred under McConnell, a senator, by the way, whom I admire in many other ways. Obstructionism relative to the DC court appointments is especially glaring. Whereas four of six Bush appointees were approved to this court, four of five Obama appointees have been blocked.

    The Senate’s rules are intended to guarantee the minority’s right to be heard. The filibuster was intended to be used judiciously, when the minority felt the gravity of their arguments were not properly heard or understood. The rules were never intended to hamstring or prevent the majority party from ruling. The last time Republicans were in charge of the Senate, Democrats did more than their fair share of filibuster; now Republicans are escalating the practice to the level of obstructionism. There’s enough blame for both sides.

    Thirdly, this court may be underworked, but it is a uniquely powerful court; it also tends to be a stepping stone to the Supreme Court. Presently, the court has four judges appointed by Democrats and four by Republicans. However, some cases are reserved for the six most senior judges, five of whom are Republican appointees. USA Today says a significant portion of Obama’s legacy is dependent on his success in appointing three nominees to this powerful court. This helps explain the importance of the current partisan politicking.

    The court traditionally has had eleven judges, recently reduced from twelve. Republicans say the work load does not require eleven, Democrats say that the cases they handle are more complex than those of other courts and therefore eleven are more ideal. Obviously, three successful appointments by Democrats for this powerful court would give them a clear majority for some time to come. However, this move could also hamper a successful Democrat appointment to the Supreme Court; Republicans would likely take full advantage of filibuster powers to block any such appointment.

    Democrat Senator Carl Levin, another Senator whom I admire, believes this recent move could prove to be disastrous. Senator Reid says that when Republicans re-gain the majority in the Senate and have the right to approve judicial appointees by a simple majority vote, he’s willing to live with that. Interesting, but doubtful.

    I totally agree that the nuclear option is very bad for politics. I agree that Democrats may have engaged in the worst kind of politics by passing the nuclear option. But to imply that Republicans have not also engaged in the worst kind of politics does not help me to consider again.

    • But, as you said, Republicans talked about it and did not implement it. So they haven’t quite engaged in these politics.

      We have a system that is designed so that it can’t be easily changed by those in power. Unfortunately, Democrats refused to respect it out of perceived “necessity.”

      Obstructionism is a good thing if it’s obstructing something bad. As you said, the court is very powerful, and Obama is trying to add three judges to score political “success” points. And it’s sad that we’re at a point where a president’s legacy depends on how much leeway the courts will give his agencies to operate. The legislature is becoming increasingly irrelevant in a system where laws are vague and the courts become political tools for a desperate president.

      • Still disappointed by the totally partisan response. Are you implying that Republicans have played no significant role or bear no significant responsibility in this disaster?

        • I’m saying that had the Republicans done the “nuclear option,” I would have come down on them too. But they didn’t. Hard to criticize one party for talking about it when the other party actually went through with it.

          Saying Republicans are responsible for a purely partisan decision (except for 3 Democrats that saw the danger and defected) does not make sense. If you think the nuclear option is wrong regardless, then the degree to which the Republicans’ obstructionism was justified seems irrelevant. Because then you still agree the Democrats did something bad for politics.

        • As you may recall, I was not pleased with the Republicans’ shutdown tactics. It’s not automatically a “partisan” response if I don’t believe they should be on the hook for this one.

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