'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 ReidFive takeaways from testy Heller-Rosen debate in Nevada Major overhauls needed to ensure a violent revolution remains fictional Senate heads home to campaign after deal on Trump nominees 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 LeahyCorker: US must determine responsibility in Saudi journalist's death Senate Dems ask Trump to disclose financial ties to Saudi Arabia Saudi mystery drives wedge between Trump, GOP 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 TrumpCorker: US must determine responsibility in Saudi journalist's death Five takeaways from testy Heller-Rosen debate in Nevada Dem senator calls for US action after 'preposterous' Saudi explanation 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 McConnellMeghan McCain calls Russian attacks against her father the 'highest compliment' to her family Schumer: Fight for Senate is 'neck and neck' Nikki Haley powerfully rebuts Trump 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 BidenJoseph (Joe) Robinette BidenElection Countdown: Small-donor donations explode | Russian woman charged with midterm interference | Takeaways from North Dakota Senate debate | O'Rourke gives 'definitive no' to 2020 run | Dems hope Latino voters turn Arizona blue Clinton aide: Chances 'highly unlikely' but 'not zero' Hillary will run for president again The Hill's Morning Report — Presented by the Coalition for Affordable Prescription Drugs — Trump, Obama head to swing states with Senate majority in balance 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 ClintonRepublicans bail on Coffman to invest in Miami seat Katy Perry praises Taylor Swift for diving into politics Election Countdown: Small-donor donations explode | Russian woman charged with midterm interference | Takeaways from North Dakota Senate debate | O'Rourke gives 'definitive no' to 2020 run | Dems hope Latino voters turn Arizona blue MORE, would be the next president, Republicans Sens. Ted CruzRafael (Ted) Edward CruzElection Countdown: Small-donor donations explode | Russian woman charged with midterm interference | Takeaways from North Dakota Senate debate | O'Rourke gives 'definitive no' to 2020 run | Dems hope Latino voters turn Arizona blue White vote is 'fundamental problem' for Texas Dems, political analysts says Houston Chronicle endorses Beto O'Rourke in Texas Senate race MORE (Texas), John McCainJohn Sidney McCainMeghan McCain calls Russian attacks against her father the 'highest compliment' to her family Arizona Dems hope higher Latino turnout will help turn the state blue McConnell: GOP could try to repeal ObamaCare again after midterms MORE (Ariz.) and Richard BurrRichard Mauze BurrDems can use subpoena power to reclaim the mantle of populism Collusion judgment looms for key Senate panel The National Trails System is celebrating 50 years today — but what about the next 50 years? MORE (N.C.) were threatening to block any Clinton nominee. The Democrats' vice presidential nominee, Sen. Tim KaineTimothy (Tim) Michael KaineAmerica’s ball cap industry is in trouble Overnight Defense: Trump says 'rogue killers' could be behind missing journalist | Sends Pompeo to meet Saudi king | Saudis may claim Khashoggi killed by accident | Ex-VA chief talks White House 'chaos' | Most F-35s cleared for flight Democrats torch Trump for floating 'rogue killers' to blame for missing journalist 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 SchumerThe Hill's Morning Report — Presented by the Coalition for Affordable Prescription Drugs — Health care a top policy message in fall campaigns McConnell says deficits 'not a Republican problem' Medicare for All is disastrous for American seniors and taxpayers 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 LevinCongress must use bipartisan oversight as the gold standard National security leaders: Trump's Iran strategy could spark war Overnight Defense: McCain honored in Capitol ceremony | Mattis extends border deployment | Trump to embark on four-country trip after midterms 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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