Nobody Wins When You Go Nuclear on Filibusters

Serious political movements shouldn't try to knock down all the barriers to power whenever they temporarily enjoy it.


Man, I'm so old, I remember when conservatives used to call what Senate Majority Leader Harry Reid, D-Nev., just did the "constitutional option." By a vote of 52 to 48, with only three Democrats defecting, on Thursday, the Senate, led by Reid, changed the rules to prevent filibusters of virtually all presidential nominees except Supreme Court justices.

By a simple majority vote—rather than the two-thirds that Senate rules require—Reid changed the rules mid-game, to prevent minority-party "obstruction" of the president's nominees. Back in spring 2005, when President George W. Bush had just won re-election, and Karl Rove-ian triumphalism was in the air, Republicans came close to banning judicial filibusters. Though irate Democrats preferred the term "nuclear option," the GOP called the majority-vote rule change "the constitutional option." (Oddly, the Senate Republican Policy Committee report adopting that moniker seems to have vanished from the RPC's website).

This time around, the Democrats have adopted Republican messaging to gain support for the rule change, and there's nothing but wailing and gnashing of teeth from Republicans who once considered "an up-or-down vote" on presidential nominees a matter of high principle.

There's plenty of hypocrisy on both sides of the aisle here. But as the constitutional scholars John O. McGinnis and Michael B. Rappaport argued in a 2010 article, "In Praise of Supreme Court Filibusters," to "avoid obvious partisanship," we should look at confirmation rules as if behind "a veil of ignorance" about whether the Red Team or Blue Team currently holds the levers of power.

From that perspective, where the Senate drew the line on Thursday—eliminating the judicial filibuster for executive branch posts and lower federal courts, but preserving it for the Supreme Court — is nothing to celebrate, but it could be a lot worse.

Given life tenure and the Court's de facto ability to "legislate from the bench," it's important to preserve the option to filibuster Supreme Court nominees. But as McGinnis and Rappaport point out, "inferior federal courts by themselves ordinarily cannot entrench new constitutional norms against the democratic process," thus here the problem presented by unelected judges' power to reshape the law "is far less acute."

When it comes to executive-branch nominees, the argument that the president, with advice and consent of the Senate, gets to pick the people who work for him, has some merit. More "up-or-down votes" here might check abuse of recess appointments and help encourage the Supreme Court to restore limits on presidential power to do an end run around Senate confirmation.

But there's a real danger that the Senate's nuclear brinksmanship ends up eliminating the legislative filibuster as well. As James Madison explained in Federalist 62, the Senate itself was designed in part to curb "the facility and excess of lawmaking."

As I warned back in 2005, a nuclear "?second strike' from a future Democratic majority could be used to prevent minorities from filibustering legislation that the majority favors."

That option is on the table, apparently. "For a lot of us," says freshman senator Chris Murphy, D-Conn., "this is only halfway to the finish line: We should get rid of the filibuster for legislation as well as nominations."

In fact, Senate Republican leader Mitch McConnell of Kentucky has (regretfully, to be sure) threatened to do just that should the GOP recapture the Senate. "Let them do it," Reid remarked. "Why in the world would we care?"

Serious political movements shouldn't try to knock down all the barriers to power whenever they temporarily enjoy it, because nothing is permanent in politics save the drive for more federal power, and the weapons you forge may someday be detonated by the other side.

Play with nukes, and sometimes you get burned.

This article originally appeared in the Washington Examiner.

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91 responses to “Nobody Wins When You Go Nuclear on Filibusters

  1. ThinkProgress were quick to point out that one of Obama’s bench nominees benefiting from this was actually integral to preventing Starbucks employees from unionizing, so maybe it’s not just Republicans that senior Democrats wanted out of the way.

  2. As a libertarian I really could care less about all of this. In theory a filibuster could be something useful to limited government, but just as often it seems historically to have been used in ways that a libertarian should find appalling (when it was used to thwart anti-lynching legislation for example).

    I do not blame the Democrats for limiting it regarding nominees as much as I do the Republicans. They clearly misused it. The filibuster was ostensibly created to make sure that a minority side could literally be heard. Students of procedure and parliamentary techniques of course realized it could be used as something more, as a blocking tool, but it was used to block controversial legislation (usually with regional splits) for the most part. The GOP was using it for uncommonly silly reasons, such as denying a vote on three judges that they actually praised in committee on the grounds that they wanted Obama to fill judicial vacancies in the West before he filled them on the DC Circuit. It was that kind of thing that made the filibuster seem silly and ultimately led to it being restricted. Overreach.

    1. your point basically says that, eventually, all rules and tactics will be abused. This one will, too, and then it will be Dems whining. Toothpaste is tough to put back into the tube.

      1. -and then it will be Dems whining

        Sure, whining is what the Dems do in general. Again, I just wonder, as a libertarian why I should care?

        1. Because filibusters stop a lot more bad laws than they do good laws. And trying to blame this on the Republicans because in your opinion “They clearly misused it.” is a bogus argument. The Republican’s weren’t any worse than the Democrats have been. Furthermore, I’ve seen no evidence that they were worse than any group of politicians is likely to be.

          This was a bad idea and I believe it will lead to worse governance.

    2. As a libertarian I really could care less about all of this.

      Since you appear to be a faux-libertarian Team Blue guy, I’m guessing your not caring is predicated upon Team Blue holding the Senate in the upcoming election.

      I’d bookmark your comment, but that would require wading through a bazillion porn bookmarks when you change your tune.

      1. -Since you appear to be a faux-libertarian Team Blue guy

        My friends and classmates would find that hilarious, to them I am worse than a Tea Partier (because, well, I am using their criteria). If you can find any instance where I have contradicted the NAP in my several months of posting here I would be interested in seeing it.

        -I’m guessing your not caring is predicated upon Team Blue holding the Senate in the upcoming election

        I have said repeatedly that I am confident the Democrat Party will lose the Senate next year. I would think that would be enough to establish that I do not care about how the Democrats are going to end up by restricting the filibuster.

    3. Go Team Blue! Down with the SnoCones!

      1. I fail to see how pointing out how SoCons violate the NAP makes one on ‘Team Blue.’ I would think rather that being so upset about it would make one suspicious you are on that other Team.

        1. I do not blame the Democrats for limiting it regarding nominees as much as I do the Republicans.

          Fuck the SoCons. Please keep posting about them.

          But your statement is stupid. We used to have a super majority requirement, and it got used. And now we don’t. The people who deserve the blame for ending the super majority requirement, are …. the people who actually ended up ending the super majority requirement, because they want more power for their party. It’s very simple. And your dissembling on the subject doesn’t make me suspicious that you are on that team, it makes it blatantly obvious.

          1. My argument is the Republicans used the filibuster in such a way as to render it easy prey for change. When they sat around complimenting Obama’s three DC Circuit court nominees but then telling them they could not allow a vote on them because they wanted people nominated to some other Circuits first they ‘jumped the shark’ on the use of the filibuster. I am all for filibustering a bad law or even a bad nominee, but filibustering a group because you want other staffing decisions made first? That is uncommonly silly. I would call the Democrats (or for that matter the LP were they ever to come into control of the Senate) on such silliness too (in fact, some of their prior use of it was close).

            1. I find your argument unpersuasive. I blame the small step toward more mob rule on the people who actually took the small step toward more mob rule. Not the people who didn’t.

              Have a nice day.

    4. Shorter Bo, “I really don’t care about this, but I’ll write a few paragraphs defending the Democrats regardless”


      1. I criticize the Democrats all the time. It is sad to see so many libertarians feel so aligned with the GOP that anyone who casts a pox on the GOP is seen as a hack for the Democrats.

        1. Yep, you’re right Bo: our perception of you is clearly someone else’s fault and not in any way your own.

          1. Again, I invite you to site where I have ever contradicted the NAP in my postings here. I can also show you many posts I have made critical of the Obama administration, the Democrat Party, and even ‘progs’ in general.

            With respect I could care less about your ‘perceptions.’ I have been a libertarian long enough to know that a fair amount of libertarians have an affinity for conservatives and the GOP. It is a crazy stance, but it is what it is. And for such people, concern about criticism of conservatives and the GOP is always a short step removed to carrying water for the Democrat Party. I can not disabuse these people of where there bias takes them.

    5. when it was used to thwart anti-lynching legislation for example

      You have to just accept this. Rules can not be changed merely because they might sometimes be used contrary to how you would prefer. Without rules (and the willingness to follow those rules withing reason), civilization deteriorates. This is as true for 100 members of the Senate as for society in general (or any other group of people). “Might makes right” sounds good as long as you are on the winning side, but everyone eventually becomes a loser.

      1. If the Democrats are thinking ‘might makes right’ they are being even more foolish than usual, because they are going to lose their ‘might’ next year. The ACA is going to be the ‘gift that keeps on giving’ to the GOP for years to come. I think they were attempting to change the conversation from that, and while it is par for the course to see partisans for the GOP falling for it I think libertarians should respond with a collective shrug. The filibuster itself is not inherently pro-liberty, and the GOP were using it in an uncommonly silly way.

        1. The filibuster itself is not inherently pro-liberty

          Um, yes it is. It’s sole purpose is to bring the (nominal or literal) expanse of government to a grinding halt.

          Over 200 anti-lynching laws were placed in front of Congress and it’s pretty clear that, at this point, we’d have had over 200 anachronisms. Further, your optimistic vision of justice is at odds with reality. If three 3rd generation Peruvians accidentally kill a black kid playing in the street, is that a lynching? What if three black men accidentally kill a black kid in the street?

          Considering notions like murder, manslaughter, accessory, negligence, dereliction of duty, criminal recklessness and public endangerment all existed and were enforced throughout the nation, I fail to see how more anti-lynching legislation enhanced freedom and/or shrank government.

          The GOP may not be hitting the right targets, but it’s a blunt instrument, as long as you aren’t striking yourself with it, you’re using it correctly.

  3. What constitutes “mid-game” here? The Senate is allowed to change past rules, as far as I’m aware.

    1. Don’t make prolefeed wade through a bazillion porn bookmarks.

    2. The Senate has rules for changing the rules. If they can’t follow rules they’ve created in the past, they can’t be expected to follow any rules. Rules become meaningless.

  4. This isn’t what Chapman told me. (I assume; I didn’t read his article.)

  5. I think the Democrats are aware of the Bad Precedent they’re setting, but it seems the takeway they get from this is (a) don’t let the Republicans take over the Senate and White House, and (b) so long as we control the Senate and White House, let’s get as many divisive* judges and officals appointed as possible.

    *I am aware that technically you’re only divisive if you’re a Republican.

    1. I think the real takeaway for Dems is ‘can we change the subject from Obamacare.’

      1. No, I think Dems believe that with the aid of the Media and considering how ignorant many voters are, this will blow over very quickly and won’t affect much. They may very well be correct.

        1. They, and the media, want you, and everyone else, to focus on this, rather than the ACA. The day it happened the Washington Post and NYT ran absurdly banner headlines about this rather inconsequential change in a Senate procedural rule. Even the rhetoric of ‘the nuclear option’ is so over the top to describe a restriction of the filibuster for lower nominees it indicates a motive for people to ‘look over here!’

  6. “For a lot of us,” says freshman senator Chris Murphy, D-Conn., “this is only halfway to the finish line: We should get rid of the filibuster for legislation as well as nominations.”

    Ah, the naivete of a freshman who has trouble imagining the other party regaining power.

    1. worse than naivete. It’s either absolute cluelessness regarding the rules of the Senate or the belief that 50% +1 decides everything. And yeah, the butthurt would start with him if the rules he wants were in place for the other side to use.

      1. or the belief that 50% +1 decides everything.

        Except it does. When I worked in the Hawaii State Senate, they had what was called the “rule of 13” — if you had 13 out of 25 votes in the Senate, you could change any of the other rules on a moment’s whim.

        1. And we can see that HI is a beacon of freedom and prosperity!

        2. and when 13 tilt the other way, rules change to favor that group. I thought Senate rules required two-thirds vote for change, solely to prevent one side or the other from changing things because it had a simple majority.

        3. rule of 13

          So this was in fact a pre-existing rule? If so, this really irrelevant given Dems broke the pre-existing rule for changing the rules. If they wanted their own “rule of 13” (or 51), they could have brought it up and created that rule using the existing procedures for doing so. They would have failed, of course, which is why they chose to simply ignore the rules altogether. I wonder what other rules will not be ignored.

        4. Why would they change the rules – isn’t there only one party in Hawaii?

    2. It would be very nice of them to clear the way for the outright repeal of Obamacare.

      1. This is the funny part. If the GOP wins the senate and pres by 2016, this just allowed them to repeal it with ease.

  7. The only surprising thing is Reid not writing in an “until the Senate majority changes hands” addendum.

    1. I’d like to think it’s too on the nose, but I suspect blatant unilateral politicking no longer matters to liberal voters anymore.

    2. The Democrats will change the rules the day before the Republicans take power.

  8. When you know you are doomed, you are willing to take more chances. I suspect that even though they won’t admit it, perhaps even to themselves, the Democrats in the Senate know they are in a lot of trouble.…..ose-plans/

    Almost 80 million people with employer health plans could find their coverage canceled because they are not compliant with ObamaCare, several experts predicted.

    Their losses would be in addition to the millions who found their individual coverage cancelled for the same reason.

    Stan Veuger of the American Enterprise Institute said that in addition to the individual cancellations, “at least half the people on employer plans would by 2014 start losing plans as well.” There are approximately 157 million employer health care policy holders.

    You can yell “but those are right wingers saying that” all you want. But Obama didn’t put off the employer mandate for fun. Clearly he knew what was coming was not going to be good and wanted to delay it until after the midterms. But it isn’t going to work since insurance policies are written in the year before they are issued. There is a good chance 80 million people are going to see their health care policies canceled and replaced by something worse just before the election next year. It is going to be Armageddon.

    1. Too bad my wife’s company didn’t get the memo that the employer mandate was postponed a year.

      Fuck every person with Warty’s dick who voted for or supports the fuckers that voted for this piece of shit.

      1. I have some good friends who are seeing their health coverage go to complete shit because what they have is subject to the “you have decent health insurance and that aint fair” tax.

        They fucked everyone on this deal. I have never seen a political issue be so personal. Millions of people not only believed but berated their friends and family about how great Obamacare was going to be only to see their own and their friends and family get completely fucked.

        The bad news is I have no idea how we are going to fix this. The good news is that pretty much every Democrat and prog has been made to feel like a complete lying fool because of this. This will damage people’s faith in government and the politicians for at least a generation.

      2. Warty’s dick

        Which one?

        1. The larger one with spikes.

    2. And the new policies are going to feature what the individual market ones do. restrictive networks, higher deductibles.

      and the refrain will be “but that was happening before the ACA”

      1. That dog is dead and won’t hunt. People know what they had before this and will know what they have after. For once America’s low attention voter base will hurt the Dems. The simple story always wins with voters. So, the Dems mendacious and complex excuses won’t beat “I liked my doctor and health insurance, Obama told me I could keep it, and now I don’t have either anymore”.

        1. “The simple story always wins with voters”

          agree with this. somebody gave me a one-pager to circulate on the hill aht had footnotes in it. try again. use smaller words.

      2. Remember when HMO’s were bad?

        Now it’s HMO’s for everybody, but these “new and improved” HMO’s come with high deductibles and coinsurance amounts. Yay!

    3. When you know you are doomed, you are willing to take more chances.

      Like Rivera deciding to go for it on a 4th and 10 in the Miami game. It worked, but fuck if I didn’t need a drink afterward. Miami fans, your QB was impressive.

      1. Rivera like Reid is probably out of a job in a year anyway, so might as well go for it.

        And Tannyhill is good. How horrible of a coach was Mike Sherman at aTm? He had an NFL quarterback and enough talent for the little gangster who came along at QB the next year to win 10 games and managed to finish at .500.

        1. A seven win run, and strong chances of a wild card slot in the NFC, even if they lose the two games coming up with New Orleans (not by any means a given, they played both New England and Atlanta better than the Saints did), Rivera is pretty safe at the moment.

          1. You figure Kansas City/Denver will get one wild card. That leaves one wild card left. I can’t see the Jets, San Diego, Houston or Tennessee being any threat. So I guess it comes down to Miami or Baltimore.

            1. Denver and KC are not in the NFC. If the division stay as it now stands, Carolina is one game ahead of Arizona which is one game ahead of Philly, Chicago and Dallas. I don’t think any other team is in contention after that. Maybe Green Bay, but every thing has to go there way plus other teams getting upset losses for them to have a crack at it.

              1. Whoops, didn’t include Detroit, but I’m going to assume they got that division locked up even if the end the season in a dead tie.

              2. I thought you were talking about Miami.

                1. Oh, okay. That did confusing there. It’s that time of year I like the most. Where stats eliminate some from the competition before the fan base realizes it, in other words, time for sucker bets!

    4. When you know you are doomed, you are willing to take more chances.

      Actually, I think this is a very good explanation of what’s happening. Essentially, the Senate Democrats’ position is not much different from the management of a distressed company. Their position in the political duoploy is pretty much assured (this roughly corresponds to bankruptcy in that there’s a limit to the downside). But, they know they’re about to face tremendous losses (roughly corresponding to the fact that you’re facing that limit). At that point, the rational course for most managers is to take wild risks. If they’re already facing losing a filibuster proof majority in the Senate, why not stack the courts. That has the added advantage of ginning up the base.

      1. If I was about to lose the majority, I would be shoring up the filibuster and any other procedures that would benefit the minority* party.

        *no racism intended.

        1. That makes sense if you’re only going to lose a narrow majority. If you know you’re going to lose so big that the other side gets a filibuster-proof majority anyway, you’d be wiser to throw it out. The thing is, you’re not looking at it in an options framework. The outcomes aren’t symmetric. You normally want to not do stupid things like risk your downside because you’re not rubbing against the very downside. They probably are now. On the other hand, if they can score a big win, that puts them back in the game.

          1. If Team Blue is convinced they are going to lose congress next year, then they are making this effort to pack the courts beforehand.

    5. Clearly he knew what was coming was not going to be good and wanted to delay it until after the midterms.

      And what do you bet that Republicans will screw up the messaging on this? No one will present this in a rational manner, or at least the Media will focus only on those hysterically screaming about this, and Dems will retain control of the Senate?

      1. You don’t need messaging when the mob is standing outside the door, which is what is going to happen when 80 million people see their health insurance fucked over.

  9. Do we ever win?

  10. But the filibuster was just keeping the Anointed One from doing His work!

    1. Obama is out there on some of America’s toughest golf courses doing God’s work Sevo.

      1. is he even any good? i honestly have no idea.

        1. If his basketball game is any indication, I doubt it. Golf doesn’t take a lot of athletic ability. It just takes a lot of time and persistence. Since he has played more rounds of golf than every President in history combined, he probably isn’t too bad.

        2. I’m going to guess he cheats and takes lots of Mulligans.

          1. I think there would be more stories of his cheating out there if he did. The media hasn’t squelched the fact that he sucks and doesn’t even know it on the basketball court, and there is no way clubhouse gossip can be suppressed. After all, Clinton’s cheating on the course was legendary.

  11. I have NO PROBLEM with more partisanship in our government. Elections SHOULD have consequences, major consequences at that; all of this BS comity and “consensus” invariably leads to both parties being separate arms of the same party.

    There should be obvious differences between our two major parties instead of them agreeing on 90-95% of everything that comes before them (while the media compliantly pretends the other 5-10% in differences actually mean anything).

  12. Heard what I thought was a pretty compelling, contrarian view from a Professor Gutzman on the Mike Church show this AM. Shorter Prof Gutzman: “The Senate can make its own rules, and just because this has been there a long time, there’s nothing in the writings at the time of the Constitution that would indicate it’s something that was contemplated or expected at the time of adoption.” The fact that filibuster was adopted later, etc. etc. – so??

    Frankly, I have to pretty much agree with Botard’s statement above = “I really could [not] care less about all of this.” Not as a libertarian – which I’ve never claimed to be – but just as a person. What harm do I think comes of this? None…so fuck it.

    Republicunts need to be smarter in the future, and fight dirtier, like their Progtardian Dem friends, if they want to start #WINNING. (why didn’t THEY do this before, when it would have been to their advantage – Marquis of Queensbury Rules prohibiti it?) But I suppose there’s a reason the Stupid Party is the Stupid Party.

    1. But if you think some Senate rules THAT CAN BE CHANGED AT ANY TIME (SHOCKER! Like right now) are protecting freedom or making for better gummint…well, you’ve missed the bigger point.

      Which is that the Constitution is dead (RIP), and we need to have an Article 5 convention to discuss changes to it.

      YEAH, I SAID IT!

      1. This is not about filibustering of judges. It is about filibusters in general. If the Dems can rule it out for lower court judges, then the Republicans can rule it out for Supreme Court judges or say repealing Obamacare and since the Dems changed the rules first, the Dems won’t be able to effectively complain.

        It really is crossing the Rubicon. In the short term, I think it will be good for Libertarians. The Dems, despite their claims of being “progressive” are the conservative party who will, after the Obamacare disaster, be playing defense of the status quo in the coming years. It was damn near suicidal of them to get rid of the filibuster right now. But no one ever accused Reid and company of being deep thinkers.

        1. What, you think democrats will ever hold their own accountable? If republicans touch the ACA using a filibuster-proofed majority, they’re perverting a rule-change made in good faith by senate democrats to Get Things Done.

          They’ve no capacity for introspection, whatsoever.

          1. It is not about anyone ever voting for this. It is about the country going into revolt and a lot of Dem policies getting rolled back by a majority in the Senate that wouldn’t have been had they been able to filibuster.

            The country is going broke. The Dems just fucked up everyone’s health care. Things are going to change. And the changes likely won’t be to the liking of progs. Reality and math tend not to give a shit about intentions. And when those changes start to be made, the Dems ability to shape them and extort concessions just went out the window. Forget R versus D for a moment. With the filubuster a hard core group of prog Senators from blue states can prevent a solution to a crisis and extract real concessions. Without that, they will just get rolled.

        2. This is a huge opportunity (politically) for Republicans. They’ll screw it up.

        3. I want Obamacare repealed via reconciliation. I want the salty ham tears crying about how it was repealed via parliamentary tricks that were somehow valid in 2009.

    2. Because it was treated as tyranny when they talked about doing it back in 05ish.

        1. You asked why they didn’t do it.

    3. I don’t think it’s the end of the world either. But it’s right out of The Road to Serfdom. Once it not about things that have a broad consensus, all these silly rules and procedures just get in the way of Top Men Getting Things Done. So it sure as hell isn’t a positive sign either.

      1. Yes, that’s what I don’t like about it. It just paves the way for temporary majorities to push through shitty legislation while they have a period of control. The filibuster slowed that process down.

        Now it’s gone. And the bullshit about it just applying to non-Supreme Court nominees is just ridiculous. As soon as the Democrats set the precedent that the filibuster can be modified at all, it becomes virtually certain that it will be modified out of existence in short order.

        Does anyone think for a moment that if one of the conservative Supreme Court justices died tomorrow that Senator Reid would allow the filibuster to stop him from appointing the Democratic judge of choice? Of course not.

  13. I think this may be an indicator that they know they’re going to lose big due to O’care. They’re using the last gasp of their majority to ensure they can stack nominees who are VERY hard to get rid of to retain a certain amount of power within the government – power enough to wreck any attempt by Republicans, no matter how lame, to act on their promises.

  14. Well, next time Republicans are in the majority, they could adopt, with a simple majority, a 2/3 majority requirement across the board, including for future rule changes.

    1. Doesn’t work that way. The current Senate cannot restrict future Senates. It will always take a simple majority to change the rules again.

    2. Um, what? Parliamentary rules don’t work that way.

  15. Procedure? Rule of law? Progressives have no use for either of these concepts. In fact, axiomatic principles of governance independent of time and space are expressly frowned upon by doctrinaire official Progressive wonks. Gotta let history and whims of the latest cock cobbling tyrant work their way through the system. These guys suck as do their maniacal followers.

  16. How whas this change legal? I though the Senate needed a supermajority to change the rules of the senate.

  17. 60 is not two thirds. It’s 60 votes for cloture, and two thirds to override a veto.

  18. until I looked at the check which was of $4814, I be certain that…my… mom in-law could actually bringing home money in there spare time on-line.. there aunt started doing this for under 20 months and at present cleared the debts on their appartment and got a top of the range Ford Mustang. why not try this out


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