The Nuclear Option…

…judicial activism, blah, blah, blah. In watching this soap opera unfold I can’t help but feel that both sides are being amazingly hypocritical. Of course, this is not in the least surprising since we are talking about politicians and we must always remember the primary law of politics:

Politicians: they lie.

So we see the Democrats, who under Clinton were making the exact same arguments the Republicans are now making, have shifted their views 180 degrees. The Republicans, during the Clinton Presidency, are now making the exact same arguments that the Democrats were making. Both sides are comprised of nothing but shameless hypocrites. Basically I think Megan McArdle has summed it up nicely,

The fact is that Republicans are going to shove conservative judges down liberal throats because they can, not because there is some cosmic principle of justice involved. And Democrats should tone down the histrionics about the fundamental illegitimacy of Republican court-packing, when the reason the Republicans are so determined to pack the court is that it is the only way Democrats have left them to undo the quasi-legislation that liberal judges wrote after Democrats packed the court decades ago. Having remade the rules about how legislation gets made, you can’t just tell the Republicans that it’s some sort of metaphysical abuse if they try to touch the ball.

FILED UNDER: Law and the Courts, Uncategorized, US Politics, , ,
Steve Verdon
About Steve Verdon
Steve has a B.A. in Economics from the University of California, Los Angeles and attended graduate school at The George Washington University, leaving school shortly before staring work on his dissertation when his first child was born. He works in the energy industry and prior to that worked at the Bureau of Labor Statistics in the Division of Price Index and Number Research. He joined the staff at OTB in November 2004.


  1. maddmatt says:

    Really, when did the dem’s attempt to remove 200 years of tradition, I must of missed that day.

  2. RiverRat says:

    You assert a reversal of position by the Republicans during the Clinton years. I have been unable to find support for your assertion with respect to filibusters. Holds, committee procedural blocks but no filibusters…ever!

    Fortas was bipartisan, not a minority filibuster.

    Clarify please, if you can

  3. fireinthesun says:

    You are absolutely right. This is not about “judicial activism” in the sense that complaint was once voiced by true conservatives. After all, the constitutional/nuclear option is about declaring a long standing and traditional Senate Rule “unconstitutional.” If the nuclear option were challenged in court, Republicans would respond and the courts would agree that the Senate has the absolute right to govern its own rules and procedures — exactly the reason the fillibuster is manifestly not unconstitutional. Raw power, folks. Might makes right. No? Who are you anyway? If I’m stronger than you, you’d better put a cork in it!

  4. Maniakes says:

    168, 37, or 4 years of tradition (not 200+), depending on how you count. The first filibuster of any kind in the US Senate took place in 1837. The first filibuster of a judicial nominee took place in 1968. The first successful partisan filibuster (a “virtual” filibuster; Senate leadership hasn’t forces an actual filibuster-on-the-floor) of a judicial nominee took place during Bush’s first term..

  5. Maniakes says:

    The filibuster may not be unconstitutional, but the requirement of a supermajority to change senate rules is. The “nuclear option” is a proceedure which changes senate rules by a simple majority vote.

    See debate in the comments thread here.

  6. fireinthesun says:

    The fillibuster becomes kind of meaningless if it is based on a rule requiring 60 votes to end debate and that rule can be changed by 51 votes.

  7. Maniakes says:

    The fillibuster becomes kind of meaningless if it is based on a rule requiring 60 votes to end debate and that rule can be changed by 51 votes.

    True, unless a significant number of swing voters regard the filibuster as a sacred tradition that should never be changed. Senators are accountable to the people, and voting to eliminate the filibuster is a bigger deal than voting to end debate on a specific issue.

  8. Mark Jaquith says:

    True, unless a significant number of swing voters regard the filibuster as a sacred tradition that should never be changed.

    There do seem to be a few of these…

  9. mallarme says:

    No doubt you all know this, but since it hasn’t been mentioned, I feel it my duty to point out that this fight is only tangentially about the filibuster, a tactic that should be used extremely sparingly and only in the most extreme of circumstances. The Republicans did not have to filibuster judges under Clinton because there were other methods of delaying and/or stopping judges they objected to from coming to a vote: blue slips, Rule IV, etc. Republicans changed the rules after they gained power so that they could get judges they wanted in more easily, dismantling the rules that previously had protected the minority party. Kevin Drum has been covering the details of this for a while:

    So, yes, most politicians lie and are hypocrites, but what the Republicans have done here is qualitatively different from what the Democrats did under Clinton. The debate isn’t really about the filibuster. It’s about preventing a cynical attempt by the majority party to consolidate power. Even if for no reason other than self-interest, this is a bad move for the Republicans. What happens when they lose control of the Senate? I do not think so highly of the Democrats that, if the rules permitting the minority party to place a check on judicial nominations are not reinstated, they will not blithely abuse the system and ignore the preferences of the Republicans just as the latter are doing now. The nuclear option is not only unprecedented, unfair, and unwise, but it is unethical:

    Stable and fair rules are far more important than the moment’s agenda, regardless of who is in power.

  10. tgibbs says:

    Well, this was obviously the best decision for the country, in that the availability of the filibuster encourages compromise and negotiation and discourages a small majority from completely overriding the views of the majority.

    I confess to a certain disappointment, however. I admit that I was looking forward to hearing the cries of rage when the tactic ultimately backfired, as it was sure to do. Indeed, the whole filibuster crisis was triggered by the backfire of a previous shortsighted Republican tactic of using parliamentary maneuvering to block a large number of Clinton’s judicial nominees from coming to a vote. Having established that such tactics (which would once have been viewed as an unacceptable violation of Senate etiquette) are fair game, the Republicans inevitably found themselves, after a shift in the political tides, looking down the barrel of their own tactic.

    It is amazing, considering the razor-thin narrowness of the margins in the last two elections, that the Republicans would want to increase the ability of the chief executive to ram through controversial judicial appointees. I thought that the screams of the Democrats had a certain “No, no, don’t throw us in that briar patch!” character. After all, appointment of extremist right-wing judges would only improve the Democrats’ ability to argue in the next election that undecided voters should consider the harm done by now-unrestrained judicial appointments by a Republican president indebted to the religious right. And of course, if the Democrats did take the office, they could point out that it was a Republican rule that the President was using to put through his appointments.