November 7, 2013
The Capitol (J. Scott Applewhite/Associated Press)
The Capitol (J. Scott Applewhite/Associated Press)

Senate Majority Leader Harry Reid (D-Nev.) is continuing to push President Obama’s D.C. circuit court nominees through the Senate; Republicans continue to block them by filibuster. The next two cloture votes are expected next week, and as of now there”s no reason to expect three more Republicans to join the two who voted for cloture on Patricia Millett and thereby get to 60.

The next step? Surely, a strong threat of majority-imposed Senate reform: the “nuclear option.”

So it’s worth reviewing a few notes about going nuclear:

• Reid and the Democrats did not threaten to go nuclear against aggressive but selective use of the filibuster. There was no majority-imposed reform after the nominations of Goodwin Liu or Caitlin Halligan were defeated by filibuster — and those haven’t been the only ones. This is different; here, Republicans are blockading three perfectly legitimate seats on a court, opposing the nominations despite having no problem with the particular nominees.

• Yes, going nuclear would have consequences. I disagree with Matt Berman about that; once the line is crossed, it would be much more likely for future majorities to change the rules in their favor.

• I disagree, however, with the claim that Republicans would respond by “blowing up” the Senate — that is, by using the Senate rules to shut down the chamber. It is true (contrary to what a lot of liberals believe) that Republicans could obstruct more than they have during this Congress. But I don’t believe they would. The basic argument: if it was to their advantage to do so, they would already be doing it.

The bottom line here is that the best thing for the Senate would be for Republicans to stand down and give up on blockading positions, whether executive branch or seats on the federal bench, while Democrats (continue to) accept occasional judicial nominees getting defeated by filibuster. But I agree with Norm Ornstein: if Republicans can’t accept that reasonable balance, then Democrats should go nuclear if necessary.