Guest Column: Senate Democrats pass the ‘nuclear option’ for judicial nominees, the country will be better for it

The Baltimore Sun

While there might be some bruised feelings and anger left behind in the aftermath, the so-called “nuclear option” unleashed Thursday by Senate Major Leader Harry Reid and the Democrats hardly seems worthy of its destructive billing. It means only that from now on in judicial nominations other than those for the Supreme Court, the majority will no longer have to muster 60 votes to win confirmation.

That Senate Republicans immediately compared the change in Senate rules to Obamacare — a non sequitur if ever there was one — was only symptomatic of the political polarization that required such a change in the first place. Reining in the filibuster was necessary because its over use had gotten ridiculous — the three latest victims, the Obama administration picks for the D.C. Court of Appeals, were simply the last straw for a problem that has been years in the making.

Make no mistake, this was no big victory for Democrats. As Mr. Reid acknowledged when he introduced the rule change on the Senate floor, this will give his own party less clout if and when the GOP gains a Senate majority. What’s good for the goose is going to be good for the next generation of gander.

But as the majority leader also pointed out, this was for the sake of the country. From Eisenhower to Ford, there were a total of zero filibusters of executive nominations. During Carter and Reagan’s terms, there were a handful. During George W. Bush’s two terms, there were seven.

During Barack Obama’s time in office, there have been dozens. The problem has been felt most keenly in the judiciary where there are now 75 open district court seats, an 11 percent vacancy rate, far higher than during the equivalent moment in either the second terms of Bill Clinton or Mr. Bush.

Republicans can point out that Mr. Obama has gotten most of his nominees confirmed overall, but the judicial filibusters have been particularly outrageous. And the GOP’s excuse — that the nation’s second most powerful court and one that reviews much complex federal regulation didn’t need three of its 11 judgeships filled — is disingenuous at best.

What’s really been going on here is that conservatives don’t want the clout of the judiciary’s remaining GOP appointees to be diluted. They are pushing their ideology on whatever matters they can — drawing a proverbial line in the judicial sand.

Senate Minority Leader Mitch McConnell’s suggestion that this is a phony issue intended to distract voters was laughable. The Democrats nearly went nuclear four months ago only to have a last-minute deal brokered by Sen. John McCain that resulted in vacancies finally being filled on the National Labor Relations Board. Others, including this editorial board, have been pushing for a change in Senate filibuster rules for years.

And speaking of distractions, it looks like Senator McConnell and others in his party will continue to cling to Obamacare as their excuse for inaction. Grand deal on the budget? Sorry, Mr. Obama’s behavior on Obamacare means he can’t be trusted.

Are Republicans so cynical that they truly believe voters will forgive them for doing nothing for the next year except complain about a law that was passed in March of 2010? That’s not fixing any problem; that’s just rooting against the nation’s well-being.

In reality, most Americans won’t give a flying $10 co-pay about the nuclear option and how many senators it takes to end a filibuster, or dance on the head of a pin. Only in Washington will this be an all-consuming focus — at least until Congress flies home for Thanksgiving break this weekend. More instructive is that after the rule change, one of Mr. Obama’s appeals court nominees, Patricia Millett, a woman who has argued 32 cases before the Supreme Court, was immediately confirmed.

Is the Senate now a bit more chilly? Maybe. Worse yet, perhaps the change in rules will cause presidents to nominate more judges who are overtly political — but at least that can be corrected at the ballot box. Don’t agree with a president’s politics? Vote for someone else. Refusing to even allow a vote on judicial nominees as qualified as those Mr. Obama had recently offered was what caused the damage, not the Democrats’ decision to use the only option they had to set things right.

– The Baltimore Sun