WaPo's Capitol Hill correspondent Paul Kane is a legendary e-mail writer. From time to time, we publish e-mail exchanges between Paul and The Fix in hopes of providing readers some behind-the-scenes insight into how Washington really works. Today we tackle the increasingly likely possibility that Senate Majority Leader Harry Reid will invoke the nuclear option, changing Senate rules to allow federal judges to be confirmed by a simple majority.
FIX: All right, PK. It's that time again. The time to talk about whether Harry Reid really is serious about invoking the "nuclear option" on judges. Greg Sargent quoted a senior Senate aide earlier this week saying this about Reid: “Reid has become personally invested in the idea that Dems have no choice other than to change the rules if the Senate is going to remain a viable and functioning institution."
So, are we finally, this-time-we-mean-it going to see the nuclear option invoked?
PK: Yep, Fix, we’ve hit Defcon 1. The trigger is set to be pulled sometime Thursday, according to my sources. (For those who forget the rankings, Defcon 5 is the shiny-happy-people level, and Defcon 1 is basically the missiles have/will soon have launched.)
John McCain, who has been in the middle of the three or four previous deals to defuse the trigger, met with Harry Reid Wednesday to discuss the issue, but aides reported no progress. Last time this happened -- a fight that culminated with a three-plus-hour marathon closed-door meeting of almost all 100 senators in the Old Senate Chamber, on my birthday, July 15, no less -- Democrats gave the Republicans an opt-out: confirm a bunch of nominees to the NLRB etc. McCain rounded up enough Republicans to support those nominees and the issue was defused.
This time around, Democrats have pushed three nominees to the crucial D.C. circuit court, which handles most of the critical cases on interpreting federal law. The Rs say the court -- which tilts toward GOP-appointed judges at the moment -- doesn’t need any more judges. And McCain’s gang of GOP senators agreed, blocking all 3 of Obama’s nominees.
Dems feel they’ve no other options, aside going nuclear. What does that entail? It means changing the chamber’s precedents and rules on a simple majority vote, something that has never happened in the roughly 225-year history of the so-called world’s greatest deliberative body.
That’s because the Senate has always considered itself a “continuing body” since only a third of its members are elected every two years, and its rules live on through each and every Congress. (The House is different and adopts new rules at the start of each Congress every two years, and even adopts rules for how to consider each and every major piece of legislation.)
Because of this historical impact, when the simple majority rules change was proposed about decade ago -- by the Republican majority at the time, trying to overcome a Democratic-led filibuster blockade -- GOP Senator Trent Lott dubbed it the “nuclear option.” At the time, Reid was minority leader and promised that the “nuclear fallout” would be even more gridlock in a chamber that is already, well, slow moving. But a McCain-led “Gang of 14” averted that crisis, which was finally defused in May 2005 after a few years of war drums.
We shall see how Republicans respond to Reid’s pulling of the nuclear trigger.
FIX: Well, if I take you at your word -- and I do -- that Reid is serious this time, then the burden of what comes next falls on Mitch McConnell. And, if memory serves me, the last time Reid invoked the possibility of the nuclear option, McConnell took the Senate floor and uttered this famous/infamous line: "Our friend the majority leader is going to be remembered as the worst leader here ever." Then he added: I just hope the majority leader thinks about his legacy, the future of his party and, most importantly, the future of our country before he acts."
Given that -- and the fact McConnell made those statement less than six months ago -- I don't see how all of a sudden McConnell capitulates to even some of Reid's demands on judges. That's a pretty absolutist bit of rhetoric, not to mention the fact that a) the people who care the most about the federal judges are the Republican base and b) McConnell has a primary challenger from his ideological right in 2014.
Add to ALL of that the fact that after the last we-are-going-nuclear-this-time-we-really-mean-it kerfuffle it was widely acknowledged by both sides that the Reid-McConnell relationship had never been worse, it's hard for me to imagine that Reid is super-interested in giving his opposite number an easy out like he did last time around. What does Reid have to lose by pushing this thing all the way to its logical conclusion? Some old time Senate hands may tut-tut but he would be a hero to the Democratic base. And, does anyone really think that if Reid runs for re-election in 2016 he loses because of the nuclear option?
So, I guess my question to you then is this: Why should I think (or should I think) this still might not happen?
PK: The only reason to think it won't happen is because it's never happened before. That said, we're living in a Senate that is unlike any before it.
The most important numbers here aren't those of polling in Nevada or Kentucky. It's this: 55. No, not the number of members of the Democratic caucus. There are 55 senators who have only lived life as a member of the Democratic majority or Republican minority. (It looks like 56, but Dan Coats is in his second go-round so he knows both sides of the majority ledger.)
Today's Senate suffers from "Permanent Majority Syndrome" and "Permanent Minority Syndrome." Half the GOP caucus has never lived in the majority, never had the virtue of trying to get their president's nominees through the confirmation process, never tried to get one of their donor buddies confirmed to a slot on a commission or an agency. They have viewed life through a prism solely in the minority, where their duty is to object, object, object. There's a CRS report that shows those Obama judicial nominees who were unanimously confirmed still waited more than 100 days. Republicans have found ways to just delay, slightly object, maneuver, delay. Many of those Republicans have never been in the majority and never needed to get one of their own home-state guys confirmed to the local federal bench. Never had to work a deal with a Democrat to get their guy confirmed to something.
Democrats, on the other hand, now have a caucus that is about 60 percent filled with senators who've never served in the minority. Elder Democrats, like ex-Sen. Chris Dodd and Sen. Carl Levin, have told these newcomers they will rue the day they do this, that the Republicans will be more ruthless when they get into the White House and Senate majority. That they're destroying the founding vision of the Senate as a cooling saucer.
Some of these junior Democrats are anti-filibuster purists; Tom Udall and Jeff Merkley at the top of that list. Those two genuinely do seem fine with the concept of, when they are in the minority enduring a terrible life with fewer privileges than Senate minorities of the past.
But for most junior Democrats, and many of their staffs, they just don't see the minority as a possibility. They think that there's a slight chance of losing it in 2014, but the 2016 map looks so good for Democrats right now that they assume that if they lose the majority in '14, they'll win it back in '16 on the back of Hillary Clinton's presidential bid. And they won't suffer for the nuclear option.
It's a big bet to make. One that will fundamentally alter the institution.
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