We’ve mentioned around here in recent days some of the consequences of Harry Reid’s 2013 decision to invoke the so-called “nuclear option,” allowing nearly all executive and judicial nominations (not including the Supreme Court) to proceed to a Senate vote with just a simple majority.
For one thing, it means that President-elect Trump will have a very easy time of filling out his cabinet, and can in fact do so without any Democratic support at all. In practical terms, this appears to mean we will get a much more conservative cabinet than the one George W. Bush appointed.
Another consequence: Democrats will be unable, on their own, to block any of the 127 lower-court judicial appointments that Trump will be able to make in 2017, as they are either currently vacant or become vacant soon. The only curb Democratic senators will have depends on their Republican counterparts’ respect for Senate tradition about the appointment of judges in their home states. (So far, it appears the Republicans will respect that tradition.)
That is the downside for Democrats. But what was Reid aiming for when he invoked the nuclear option in the first place? For one thing, they wanted to confirm a head of the Consumer Financial Protection Board, which had recently been created under Dodd-Frank but had been leaderless. Republicans had blocked Obama’s nominations to the post on the view that the agency was set up to be unaccountable to elected officials and therefore unconstitutional (a view that has since been borne out by the courts).
Democrats also wanted fill as many vacancies as possible on the D.C. Circuit Court of Appeals, and this is where things get a bit interesting. You may recall that earlier this year, about three years after the nuclear option helped Obama establish a liberal majority on the D.C. Circuit, a three-judge panel on the case decided a key case on FCC regulation of the Internet.
Democratic appointees at the FCC had been trying to regulate the Internet essentially like a utility, but up to that point they had been blocked in the D.C. Circuit. But this time, the pool of judges from which the panel on the case was drawn was a lot more favorable. And the result in this case was a 2-1 decision in favor of the FCC position.
Todd Shepherd of Complete Colorado, who will be joining the Washington Examiner‘s staff a week from now, filed a FOIA request earlier this year for the emails of the FCC commissioners and found one very telling exchange between FCC Chairman Tom Wheeler and Reid’s former chief of staff, David Krone.
Krone wrote to Wheeler: “Guess Senator Reid changing the filibuster rules really does matter. Not sure the old DC Circuit would have ruled the same way.”
Wheeler replied: “Had a good conversation with Sen. Reid today, as you know. Yes, the new appointees to the DC circuit were important!”
This exchange gives you a sense of how Washington works, and why processes like Senate procedure have real-life consequence. But current events also help add some additional perspective about how fleeting such procedural victories can prove to be.
Trump’s win last month, combined with Wheeler’s recent announcement that he will step down at the FCC, mean that the survival of the FCC’s Open Internet rule will depend on Trump’s appointees, who so far do not appear to be terribly sympathetic. Even if Trump appoints no one, the FCC will still have a three-member quorum and a 2-1 Republican majority when Obama leaves office, which could mean the rule is never enforced.
The FCC decision aside, Obama certainly did score a coup in filling four vacancies on the D.C. circuit in 2013, resulting in the current 7-4 lineup of Democratic- versus Republican-appointed judges. But Trump is about to exact a steep price for the nuclear option from the Senate Democrats who implemented it. And because Democrats lost the Senate in 2014, the nuclear option ultimately did not allow Obama to confirm any more judges in his eight years than George W. Bush had confirmed in his time.
All in all, the nuclear option is still looking like a pyrrhic victory.
