'Nuclear option' for Supreme Court nominees will damage Senate
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Democrats may be on the verge of reaping the bitter harvest of the seeds sowed in November 2013.

The then-majority Democrats used a controversial parliamentary gimmick to unilaterally reinterpret existing Senate rules. By use of the so-called "nuclear option," they established the principle that a simple majority in the Senate can overrun any rule at any time.

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It is often written that the Senate Democrats led by then-Majority Leader Harry ReidHarry Mason ReidThe Hill's Morning Report — Pelosi makes it official: Trump will be impeached Doctors are dying by suicide every day and we are not talking about it Impeachment trial throws curveball into 2020 race MORE (D-Nev.) "changed" the filibuster rule as it applies to judicial nominations (with an exemption for Supreme Court nominees).

They did nothing of the sort.

Democrats, by fiat, altered the way the Senate interprets Rule XXII, which governs the procedure for cutting off debate and ending a filibuster. The rule continues to prescribe that when a cloture vote occurs, the question must be put, "Is it the sense of the Senate that the debate shall be brought to a close?"

It goes on to state that cloture is invoked if "the question [is] decided in the affirmative by three-fifths of the Senators duly chosen and sworn."

Reid raised a point of order, claiming that the words "three-fifths" mean "a simple majority." The presiding officer, Sen. Patrick LeahyPatrick Joseph LeahyICE emerges as stumbling block in government funding talks Republicans raise concerns over Trump pardoning service members Lawmakers bypass embattled Mulvaney in spending talks MORE (D-Vt.), on the advice of the Senate parliamentarian, rejected the point of order.

However, the majority, by a 52-48 vote (three Democrats voted "no"), was able to overturn the ruling of the chair, creating the new precedent that "three-fifths" or 60 senators means a simple "majority."

It doesn't take difficult math or much knowledge of the English language to see that this is ridiculous.

The Democrats paved the way. Now in the minority, early in the 115th Congress, Democrats will be confronted by a Supreme Court nominee chosen by President Donald TrumpDonald John TrumpTrump says he will 'temporarily hold off' on declaring Mexican drug cartels as terror organization House Judiciary Committee formally receives impeachment report Artist behind gold toilet offered to Trump sells banana duct-taped to a wall for 0,000 MORE.

They won't like it. If nothing else, they will rightfully feel that the nomination legitimately belonged to President Obama. The Republicans stonewalled it for 10 months. Democrats will believe that the seat was stolen and that the Trump nomination is therefore illegitimate.

Consequently, a filibuster may occur. This could cause Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellOvernight Energy: Pelosi vows bold action to counter 'existential' climate threat | Trump jokes new light bulbs don't make him look as good | 'Forever chemicals' measure pulled from defense bill Overnight Health Care — Presented by Johnson & Johnson – House progressives may try to block vote on Pelosi drug bill | McConnell, Grassley at odds over Trump-backed drug pricing bill | Lawmakers close to deal on surprise medical bills GOP senators request interview with former DNC contractor to probe possible Ukraine ties MORE (R-Ky.) to trot out the nuclear option precedent and try to extend it to cover the Supreme Court, allowing the GOP to cut off debate and use its majority to confirm the nomination.

This will enrage the Democrats. The nuclear option, which Vice President Joe BidenJoe BidenHouse Judiciary Committee formally receives impeachment report Democratic strategist: 'Medicare for All' exposes generational gap within party Yang expands campaign with senior hires for digital operations MORE, while a senator, called "a lie about a rule," was given its label by former Rules Committee Chairman Trent Lott (R-Miss.) in 2005 because Democrats were threatening that if the Republicans used the ploy to overcome their filibuster of several George W. Bush-nominated judges, the angry Democrats would bring the Senate to a halt by obstructing everything.

The bitterness created by the twin outrages of eliminating the right to filibuster a Supreme Court nominee, coupled with the unprecedented and constitutionally suspect stonewalling of Obama's nominee, Merrick Garland, will further polarize an already deeply torn Senate.

In October, when it seemed possible that the Democratic nominee, Hillary ClintonHillary Diane Rodham ClintonYang expands campaign with senior hires for digital operations Top GOP legislator in California leaves party GOP senators request interview with former DNC contractor to probe possible Ukraine ties MORE, would be the next president, Republicans Sens. Ted CruzRafael (Ted) Edward CruzTrade deal talks expand as Congress debates tech legal shield Sanders meets with MLB Commissioner Rob Manfred Cruz knocks Chick-fil-A over past donation: It has 'lost its way' MORE (Texas), John McCainJohn Sidney McCainLessons of the Kamala Harris campaign Overnight Defense: Trump clashes with Macron at NATO summit | House impeachment report says Trump abused power | Top Dem scolds military leaders on Trump intervention in war crimes cases Top Armed Services Democrat scolds military leaders on Trump's intervention in war crimes cases MORE (Ariz.) and Richard BurrRichard Mauze BurrGOP senators request interview with former DNC contractor to probe possible Ukraine ties North Carolina congressman says he won't seek reelection after redistricting Senate passes bipartisan bill to permanently fund historically black colleges MORE (N.C.) were threatening to block any Clinton nominee. The Democrats' vice presidential nominee, Sen. Tim KaineTimothy (Tim) Michael Kaine'Granite Express' flight to take staffers, journalists to NH after Iowa caucuses Overnight Health Care — Presented by Johnson & Johnson — Senate panel approves Trump FDA pick | Biden downplays Dem enthusiasm around 'Medicare for All' | Trump officials unveil program for free HIV prevention drugs for uninsured Trump's FDA nominee approved by Senate panel MORE (D-Va.), in turn hinted that if that happened, Democrats would use the nuclear option to thwart a filibuster.

I wrote then in The Hill:

In my judgment, it would be tragic if the indefensible behavior suggested by McCain (who should know better) and Cruz provokes a new Democratic majority to rewire the Senate rules to overcome a Republican wall of partisan intransigence.

In the future, any president backed by a partisan Senate majority would no longer have to consider the views and seek the votes of at least a handful of members of the opposition party. He or she would be free to select the most ideologically pure candidate.

In 2010, just a few months before his death, Sen. Robert Byrd (D-W.Va.) declared that:

"If the rules are abused, and senators exhaust the patience of their colleagues, such actions can invite draconian measures. But those measures themselves can, in the long run, be as detrimental to the role of the institution and to the rights of the American people as the abuse of the rules."

The Senate now finds itself in a dilemma. The leaders of both parties — McConnell and Democratic-leader-to-be, Chuck SchumerCharles (Chuck) Ellis SchumerOvernight Health Care — Presented by Johnson & Johnson — Democrats call on Supreme Court to block Louisiana abortion law | Michigan governor seeks to pause Medicaid work requirements | New front in fight over Medicaid block grants House, Senate Democrats call on Supreme Court to block Louisiana abortion law Why a second Trump term and a Democratic Congress could be a nightmare scenario for the GOP MORE (D-N.Y.) — are, I believe, both institutionalists who along with other senior senators of both parties will be reluctant to force the expansion of the regrettable nuclear option. They will fear damaging the Senate and risking a permanently partisan and polarized future for the Supreme Court.

But with the stakes so high, it will difficult to avoid the worst outcome. Damage to both the Senate and the court hangs in the balance.

Hopefully Senate leaders can find a way out.

Arenberg worked for Sens. Paul Tsongas (D-Mass.), Carl LevinCarl Milton LevinRemembering leaders who put country above party Strange bedfellows oppose the filibuster Listen, learn and lead: Congressional newcomers should leave the extremist tactics at home MORE (D-Mich.) and Majority Leader George Mitchell (D-Maine) for 34 years and is co-author of the award winning "Defending the Filibuster: The Soul of the Senate-Revised and Edited Edition." He is a visiting professor of political science and international and public affairs at Brown University.


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