The Nuclear Option

Senate Republicans are giving all indications that they are seriously considering the “nuclear option” of taking away Democrats’ ability to filibuster judcial nominees. The 200 year history of Senate procedures notwithstanding, many Republicans in the Senate think that traditional Senate rules should now be changed. It goes without saying that their desire to change the rules to take power away from the minority is very new, dating from approximately the time that they ceased being the minority.

Note that ending the power to filibuster judicial nominees would only be the latest step in a steady process of removing power from the minority in the Senate. Kevin Drum provides a nice summary of the rule changes that Republicans have made over the past several years to gradually deprive the minority party of its traditional rights.

What options do Senate Democrats have if Republicans go nuclear in this way? Relatively few, as far as I can tell. I’m no expert on Senate rules, and would welcome any insight in this area, but a few possibilities come to mind:

  • Democrats could initiate legal action asserting that the Republican committee leader’s decision was unconsititutional. I would guess that this would stand a very slim chance of succeeding.
  • Democrats could start filibustering everything else in the Senate, bringing all Senate business to a complete halt for the next two years. In some senses this seems the most feasible option, but would have to wage a careful p.r. campaign if they choose to do so.
  • Democrats simply promise of vicious retaliation against Republicans whenever the Democrats regain the majority in the Senate. This threat may carry relatively little weight, however, because it seems unlikely to happen anytime in the next several years.
  • Senate Democrats could try persuade a couple of moderate and less-partisan Republicans (e.g. Snowe, Collins, Chafee, McCain) that they should not support this deep breach of the principles of cooperation, and that they should therefore not support judicial nominees that have been pushed through only because of this rule change. I would guess that the chance of persuading 5 moderate Republicans to do this is close to zero.
  • They could try to take the high road, let the Senate Republicans have their way, and instead simply spend the next two years working on defeating Republicans in the next election. Presumably Democrats would spend the next two years constantly repeating the message that Senate Republicans don’t respect tradition and don’t respect the nearly 95 million voters who have voted for Senate Democrats — slightly more people than voted for Senate Republicans, by the way. I’m sure that this “retaliation” would have Republicans quaking in their boots.

None of these are great options; are there others? My guess is that since none of these possible punishments that Senate Democrats could inflict are too terrible, we probably will see Republicans exercise the nuclear option some time this year.