Posted by: Patrick Allen Foster | November 21, 2013

The Nuclear Option

The buzz today is that Harry Reid may invoke the nuclear option sometime today. Here’s Dana Bash at CNN:

Senate Majority Leader Harry Reid, frustrated by Republicans who have been blocking President Barack Obama’s nominees, is likely to launch the so-called nuclear option Thursday, senior Democratic sources tell CNN.

Democratic sources tell CNN that Reid’s plan would scrap the Republicans’ ability to filibuster executive branch nominees and judges, but exclude U.S. Supreme Court nominees. Under current rules it takes 60 votes to break a filibuster. The rule change would allow most Obama nominees to be confirmed by 51 votes – a simple Senate majority.

Typically 67 votes are required to change Senate rules, but under the nuclear option Democrats – who control the chamber with a 55-45 majority – -would change those rules with a simple majority vote.

Until now, Reid hasn’t necessarily had the support of enough of his own Democratic caucus to pass a rule change. Some Democratic senators are really reluctant to change the rules – because of reverence for the institution and, more importantly, because they know Democrats will not always be in the majority – they’ll be in the minority one day. The beauty of the way the Senate works, as opposed to the House, is that the minority has more power. The filibuster, a 60 vote hurdle, is one of the biggest weapons in the minority’s arsenal.

But Senate veterans like Democratic Sen. Dianne Feinstein of California who had been opposed to the nuclear option – changing Senate rules – have changed their minds. Feinstein and others, like fellow Democratic Sen. Patrick Leahy of Vermont, now say things are so broken in Washington that the nuclear option may be the only way to fix it.

For more analysis, and some history, see this post by Jonathan Adler at the Volokh Conspiracy. See also this post by Thoreau.

As I have said before, we’ve been hearing talk of the so-called nuclear option for the past ten years, and every time the Senate majority comes close to invoking the nuclear option, someone backs down, or some group of senators — like the Gang of 14 — strikes a Henry Clay-style bargain, pulling the football away just as Charlie Brown’s foot is about to make contact.

So, again, I’ll believe it when I see it.

Update (Thurs., Nov. 21, 2013, 1:20 PM): Wow. They did it. I’m impressed. They actually did it. Probably for the best, long-term. I’m just surprised, after so many false starts in the past. More later.

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