When Sen. Harry Reid abolished the filibuster against most executive branch nominations in 2013, he preserved what seemed even then like an aritificial distinction between the lower courts and the Supreme Court.
That’s what people will probably argue about this week, but it isn’t the true nature of the nuclear option.
Before Reid’s fateful action — which, by the way, has helped produce the most conservative cabinet we’ve seen at least in my lifetime — 60 votes were required to end debate on nominations. But the barrier Reid actually broke was not the 60-vote supermajority, but the 67-vote supermajority that is — or rather, was — required to change Senate rules.
The Senate is run not just by written rule, but also by precedent. And Democrats created one when they simply overruled the chair on the issue of whether debate could be closed with a simple majority.
Former Sen. Carl Levin, D-Mich., was on the verge of retirement when this happened. And he was one of only three Democrats who voted against the nuclear option. On the occasion, he had this to say after the deed was done:
In the past, a few Senate majorities, frustrated by their inability to get certain bills and nominations to a vote, have threatened to ignore the rules and to change them by fiat and to change rules to a majority vote change. Rule 22 of the Senate requires two-thirds of the Senate to amend our rules. A new precedent has now been set, which is that a majority can now change the rules. …
Overruling the ruling of the chair, as we have now done by a simple majority, is not a one-time action. If a Senate majority demonstrates it can make such a change once, there are no rules which binds a majority and all future majorities will feel free to exercise the same power, not just on judges and executive appointments but on legislation.
So Democrats were warned back then by the more reasonable among them. They chose otherwise, and now they see themselves further sidelined as a result.
Although it doesn’t always work out this way, the Senate should be natural territory for Republicans in the short and medium term, based on the political orientation of the various states. President Trump carried 30 states, after all, which are represented by 60 senators, and Republicans hold three additional seats right now in states that Hillary Clinton carried. Clinton carried 20 states, represented by 40 senators, and Democrats hold eight Senate seats right now in states that Trump carried.
Politics is obviously more complicated than the crude math — that being competitive for 63 seats is better than in just 48 — but it goes to show that Democrats start off each election with a structural disadvantage in the chamber where equal representation is the immutable rule.
What this means is that, in exchange for momentary gratification of his party’s left wing, Reid created the tools by which Republicans will now diminish their power in the short and medium term.
Maybe I’m wrong about that. But no matter who ends up benefiting more from this particular change, the days of minority rights in the U.S. Senate are surely numbered at this point. Somewhere waiting in the future is the day when an ambitious majority leader (perhaps Chuck Schumer, John Thune, or Chris Murphy) decides he will use it to resolve a standoff over a government shutdown, or the debt ceiling, or maybe just pass a bill that his party’s president really, really wants.
