'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 Trumpification of the federal courts Trump to rally evangelicals after critical Christianity Today editorial Left presses 2020 Democrats to retake the courts from Trump 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 LeahyOvernight Defense: Book says Trump called military leaders 'dopes and babies' | House reinvites Pompeo for Iran hearing | Dems urge Esper to reject border wall funding request Senate Dems urge Esper to oppose shifting Pentagon money to border wall Senate opens Trump impeachment trial 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 TrumpRouhani says Iran will never seek nuclear weapons Trump downplays seriousness of injuries in Iran attack after US soldiers treated for concussions Trump says Bloomberg is 'wasting his money' on 2020 campaign 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 McConnellTrump admin releases trove of documents on Ukrainian military aid The Hill's Morning Report - Trump trial begins with clashes, concessions What to watch for on Day 2 of Senate impeachment trial 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 BidenSanders joins Biden atop 2020 Democratic field: poll The Hill's Morning Report - Trump trial begins with clashes, concessions Trump says impeachment lawyers were 'really good' 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 ClintonThe Hill's Morning Report - Trump trial begins with clashes, concessions Trump on Clinton's Sanders comments: 'She's the one that people don't like' Hillary Clinton tears open wound with her attack on Sanders MORE, would be the next president, Republicans Sens. Ted CruzRafael (Ted) Edward CruzWhat to watch for on Day 2 of Senate impeachment trial Senate Republicans muscle through rules for Trump trial Cruz: White House not expected to push motion to dismiss impeachment articles MORE (Texas), John McCainJohn Sidney McCainMartha McSally fundraises off 'liberal hack' remark to CNN reporter Meghan McCain blasts NY Times: 'Everyone already knows how much you despise' conservative women GOP senator calls CNN reporter a 'liberal hack' when asked about Parnas materials MORE (Ariz.) and Richard BurrRichard Mauze BurrJuan Williams: Counting the votes to remove Trump Hillicon Valley: Apple, Barr clash over Pensacola shooter's phone | Senate bill would boost Huawei alternatives | DHS orders agencies to fix Microsoft vulnerability | Chrome to phase out tracking cookies Senators offer bill to create alternatives to Huawei in 5G tech MORE (N.C.) were threatening to block any Clinton nominee. The Democrats' vice presidential nominee, Sen. Tim KaineTimothy (Tim) Michael KaineIran resolution supporters fear impeachment will put it on back burner House war powers sponsor expects to take up Senate version of resolution Sens. Kaine, Lee: 'We should not be at war with Iran unless Congress authorizes it' 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 SchumerDemocratic senator blasts 'draconian' press restrictions during impeachment trial Feds seek 25-year sentence for Coast Guard officer accused of targeting lawmakers, justices Clinton: McConnell's rules like 'head juror colluding with the defendant to cover up a crime' 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 LevinThe Trumpification of the federal courts Global health is the last bastion of bipartisan foreign policy Can the United States Senate rise to the occasion? Probably not 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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