Ranting On...the Nuclear Option

President Obama with D.C. Court nominees Robert Wilkins, Patricia
Millett, and Nina Pillard.

This past month has been a nightmare for Democrats in Washington.  The Affordable Care Act has turned into a political calamity, and polls show that the Democrats have taken a hit (Kay Hagan and Mark Udall can attest to that).  However, sometimes when you're at your lowest you make the most crucial decisions, and that's what Harry Reid did yesterday when he decided to change the rules of the Senate in a major way: going forward, all the Senate has to do to get presidential appointments and non-Supreme Court judicial nominations through the body is to get a simple majority, rather than a filibuster-backed sixty votes.  This was greeted with a chorus of "you'll be sorrys" from Mitch McConnell and hosannas from liberals like Sen. Tom Harkin.  The question is, of course-was it the right thing to do?

In essence, the nuclear option has been itching to go off since the judicial fights over Owen, Brown, and Pryor in 2005, when Bush nominated all three and the Democrats wouldn't allow any of them to come up for a vote.  In the end, the Gang of 14 gave in and allowed votes on all three (all of which were confirmed) and the issue was laid partially to rest.  It came out with abandon, though, when the Republicans gained enough votes to filibuster President Obama's nominees and has been used with almost stunning frequency in the last few years, frequently on relatively non-controversial nominees.

The straw that broke the camel's back, so to speak, was the nominations of three justices to the D.C. Circuit Court (along with the Mel Watt nomination, when the Republicans filibustered a sitting member of Congress for the first time since the Civil War), the second most powerful court in the country and a major jumping point for justices looking to be on the Supreme Court (Justices Roberts, Scalia, Thomas, and Ginsberg all four served on the court, and Justice Kagan was nominated to the court by President Clinton before having her name withdrawn).  Currently, the makeup of the court is 4-4 between Republican and Democratic nominees, and major Republicans, in particular Sen. Grassley of Iowa, have stated the court shouldn't need any other justices, and have not so subtly hinted that they don't want the makeup of a court that will have a huge impact on environmental law in this country to be too far to the left.

That's over now, though-Patricia Millett won confirmation to the court in the wake of the nuclear option being triggered, and it's largely expected that nominees Nina Pillard and Robert Wilkins will also be confirmed by Senate Democrats, making the court considerably more liberal with a 7-4 majority for the Democrats, a margin that will be tough to change in the near future under a hypothetical President Christie.

The Republicans have rightfully said that the Democrats will end up in the minority someday, and have claimed that the Democrats will rue the day that they decided to do this.  Sen. Grassley has said he'd love to have more "Scalias and Thomases" on the Courts, and he's right-this process makes it easier for a Scalia or Thomas to get onto the court, but there's a catch there.  The Democrats are currently poised to have a miniscule majority, if a majority at all, in 2015 when the Senate reconvenes, but they still have a Democratic president who won't nominate a Scalia or a Thomas, even if he can't get his actual nominees through to positions.  Secondly, if the Democrats lose the White House in 2016 (not an easy task given the current state of the electoral college), that's no guarantee that they'll lose the Senate.  There are seven Republican senators up for reelection in states that voted for President Obama in both 2008 and 2012, and only one of these senators (oddly enough, once again Chuck Grassley) have proven that they can win in a blue state with a presidential headwind. going against them.  The math is with the Democrats to at least have a trump card in the nuclear option debate until 2018, and certainly longer if Hillary Clinton wins the White House in three years (looking at these districts a bit more closely, a third Democratic term would be a massive blow for the Republicans when it comes to the judiciary, as most lower courts are run by Democratic appointees, unlike the Supreme Court).

The other question about this debate, though, shouldn't just be about practicality-it should be about whether this is right, and here's where my opinion comes in.  As a whole, I have long held that the filibuster is a vital tool for the minority in the Senate.  It prevents key legislation from being sluffed away thanks to a wave election (it's hard to imagine, for example, that the same electorate stuffed a Republican landslide between two Barack Obama victories).  However, it's hard to argue with the Democrats point here-this was not an argument anymore about preventing extremist nominees from joining the court.  It was all about preventing positions to be filled.  When it was Goodwin Liu, I could kind of understand it, but Patricia Millett?  Who worked for two separate presidential administrations, one of them Republican?  That hardly seems right, and the Republicans overplayed their hand and the Democrats called their bluff.  Mitch McConnell is right, this will come back at some point to bite the Democrats in the butt, but does anyone really believe that McConnell wouldn't have done the same damn thing if he was in Reid's shoes?  I'll tell you the answer-he would have told the minority caucus to screw themselves.

A practical opposite of the coin does emerge from this debate, though, and I will quickly share it before I let you back to your Friday morning, and it's this: the Democrats, particularly President Obama and Senate Judiciary Chairman Pat Leahy, have to act fast.  The reality is that with the Democrats near certain to lose seats in the Senate in 2014 (the ACA is compounding the fact that the Democrats were already behind thanks to states like South Dakota and West Virginia), President Obama's final two years will make this process even more precarious, particularly if the Republicans win the majority.  And you know that if the Republicans take both the Senate and the White House in 2016 that they'll fill every vacancy known to man.  So now is the time for President Obama and the Justice Department to start thinking legacy.  There are federal judicial positions that have been open for years (there's one on the ninth circuit that is coming on a decade), and there are myriad committee positions that have not been filled for just as long.  Were the President to fill all of the Court of Appeals positions, for example, he wouldn't just swing the D.C. court to a majority rule for Democratic-appointees, he'd also take the 10th, as well as eight district courts (Maine, Southern New York, South Carolina, Southern Texas, Western Kentucky, Eastern Arkansas, Arizona, and Middle Florida for the curious) and would tie four (Eastern Pennsylvania, Western Pennsylvania, Eastern California, and Kansas, for the even more curious).  These are major opportunities for the Democrats, and it's hard not to see a president that is increasingly worried about legacy and in desperate need of a political and personal win these days not taking advantage of this new rule and filling seats that might otherwise stay open for years.

Those are my thoughts on the nuclear option-what are yours?  Do you think this will truly come back to bite the Democrats?  Do you think the President will start a massive run of nominees for these offices?