It seems every time Senate Majority Leader Harry Reid, D-Nev., doesn't get his way, he threatens to invoke the "nuclear option" of obliterating venerable Senate rules that protect the right of the chamber's minority to force consideration of its views. This week, Reid is in a tizzy because Senate Republicans are blocking some of President Obama's nominees, including most recently a filibuster threat over Obama's picks to head the Environmental Protection Agency and Department of Labor.
To combat that threat, Reid has decided to force up-or-down confirmation votes on some of Obama's most controversial nominees, including Gina McCarthy at EPA and Thomas Perez at DOL. When Republicans object, Reid might make good on his threat to nuke the Senate rule requiring a two-thirds majority to end a filibuster. Through a complicated parliamentary procedure, the Senate would require just 51 votes to change its rules instead of the long-standing 67. Democrats would have the power to shut down all Republican filibusters.
Obama has more vacancies at this point in his administration than did his predecessor. But blaming Senate Republicans ignores the glacial speed with which Obama too often submits important appointments (five years to nominate a State Department inspector general being a case in point). In all, 13 percent of presidentially appointed positions were vacant at the end of Obama's first term, more than either Presidents George W. Bush or Bill Clinton.
Eighty percent of Obama's judicial appointees have been confirmed, comparable to Clinton (82 percent) but less than Bush (94 percent), according to the American Constitution Society. Obama has submitted fewer nominees than his two predecessors, so 61 of 82 vacant federal judgeships lack nominations. That's not entirely Obama's fault, since senators recommend judges and 25 of the 61 vacancies without nominees are in states with two GOP senators.
The fact of the matter is that Reid is threatening to blow up the Senate's long-standing rules for short-sighted political advantage. Senators represent constituents, and if constituents want to know more about bills or judicial nominees, then senators should ensure debate, including by filibuster if necessary.
But this fight isn't just about presidential nominees. It's about protecting the integrity of the constitutional structure, including the separation of powers between the executive and legislative branches, and the checks and balances between majority and minority in the Senate. Reid is simply reaching for a procedural hammer with which to beat Republicans.
Back in 2005, Senate Minority Leader Reid spoke differently, condemning Republican threats to go nuclear on behalf of Bush's judicial nominees. From the Senate floor, Reid declared that ending the filibuster would "violate over 200 years of Senate tradition and impair the ability of Democrats and Republicans to work together on issues of real concern to the American people." More recently, Senate Minority Leader Mitch McConnell, R-Ky., observed that "majorities are fleeting, but changes to the rules are not. Breaking the rules to change the rules would fundamentally change this Senate." It would not be a change for the better. ?