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Post-Nuclear Regrets

Depending on your political leanings, you may be tempted to draw a variety of parallels between today’s Washington and the classic satire “Dr. Strangelove or: How I Learned to Stop Worrying and Love the Bomb.”

For Senate Democrats, though, one particular bomb began its descent nearly five years ago – and for the most part, they are the ones who pressed the big red button.

When the Senate votes on Supreme Court Justice Anthony Kennedy’s successor this fall, Republicans will only need a simple majority to confirm the president’s pick. That will likely mean 50 votes; if no Republicans are swayed to the opposition, in theory the new justice could be confirmed without a single Democrat’s approval.

Historically, Senate rules required a supermajority for presidential appointees to high-level roles. That’s because a single senator could block or delay many actions, including confirmations, via filibuster; it took 60 votes in favor of “cloture” to end debate and move the process forward. As I observed last year, filibusters represent one of two major differences between the Senate and the House of Representatives. At least they used to.

In 2013, then-Majority Leader Harry Reid of Nevada invoked the so-called “nuclear option,” a parliamentary maneuver that allowed the Democrats to change the filibuster rules so all presidential nominees except those to the Supreme Court could proceed on a simple majority vote. Reid and his supporters argued that Republicans had left them no other choice due to indiscriminate obstructionism.

Many observers at the time, including me, could see how this choice was liable to haunt the Democrats soon enough. Current Majority Leader Mitch McConnell warned as much in 2013. “If you want to play games, set yet-another precedent that you’ll no doubt come to regret,” he said on the Senate floor. “I say to my friends on the other side of the aisle: You’ll regret this, and you may regret it a lot sooner than you think.” In fact, Republicans began to float the idea of a rules change for Supreme Court nominees soon after they took the majority in 2015.

I can’t quite say “I told you so,” though. While I knew Democrats would regret the move after it happened, months earlier I credited them with mere saber-rattling. In 2016, I further credited them with enough sense to back off before prodding Republicans to kill the filibuster for Supreme Court nominees too. I clearly overestimated them.

And so, almost inevitably, Democrats attempted to block Justice Neil Gorsuch’s confirmation last year. McConnell moved to change the rules to remove the supermajority requirement for Supreme Court nominees and received the support of all 52 Republicans in the chamber. Gorsuch was then confirmed in a 54-45 vote.

It is likely that Senate Democrats regretted their earlier actions at that point. If they didn’t, they almost certainly do now, with the prospect of a second Supreme Court nominee from President Trump nearly certain to secure confirmation regardless of how the midterm elections play out in November.

Sen. Joe Manchin, D-W.Va., was among the few who aired regrets not only about losing, but the destruction of long-standing bipartisan norms. In 2017, after the Republican vote, he told Politico: “I’m just extremely sad. Everybody took the easy way out. That’s all I’m saying. Everybody took it. Harry Reid took it in 2013, Mitch McConnell just took it in 2017. That means you don’t have to sit down and compromise.”

The confirmation of Kennedy’s successor will certainly still be a fight, but it will be one in which the minority party has no real weapons left. Welcome to the new normal.

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