The Senate Democrats’ “nuclear option”: What it means for the legal landscape

November 23, 2013

US CapitolEarlier this week, the Senate Democrats finally exercised their so-called “nuclear option.” 

Used heavily by some of the more sensationalist elements of the media, the label seems to imply that Washington, D.C. has been reduced to nothing but a radioactive crater as a result.

Nevertheless, the actual events that took place in Washington this week are in no rational way comparable to a nuclear holocaust – nor, as the poorly-chosen analogy seems to imply, is the Senate’s rule change a true “last resort.”

That isn’t to say that the rule change enacted by Senate Democrats isn’t historically significant.  Quite the opposite: the day will undoubtedly be marked in history texts long into the future.

In case you’ve been avoiding all Internet, TV, and print news sources, here’s what happened: the Senate voted 52 to 48 to change the required number of votes to end filibusters against all presidential nominees, except those for the U.S. Supreme Court.

Despite being labeled by detractors as a “radical power grab,” this change isn’t entirely surprising.

The filibuster, a procedural tool of the minority party to block actions taken by the majority, was once used sparingly and only selectively on an issue-by-issue basis.

Since President Obama took office in 2009, it has been used routinely by Senate Republicans to block many of Obama’s executive and judicial nominations.  According to Senate Majority Leader Harry Reid, of the 168 filibusters of executive and judicial nominations in the history of the Senate, about half of them occurred during President Obama’s tenure.

In short, filibusters have become the norm rather than the exception, allowing Senate Republicans an effective veto of any Obama appointees, despite the fact that the Democrats currently hold the majority in the Senate.

With that “veto” gone, the approval of President Obama’s nominees will progress unfettered for the first time since he took office in 2009.

What does this mean for the legal and political landscape?

On the executive front, President Obama no longer has to worry about whether the Senate Republicans (assuming that they remain the minority party after 2014) will block a specific executive appointee or block any appointee for a specific post (namely, the director of the Consumer Finance Protection Bureau).

On the judicial front, this change has a far greater impact – and such is likely the reason that Republicans are so upset.

Federal judges – including those sitting on a court of appeals – hold their positions until they die or retire (or are involuntarily removed).  As such, a president’s political and legal influence can last far beyond the years that he occupies the White House through any judicial appointments; and that influence may be far greater if the president is able to appoint a greater number of judges.

In addition, it’s worth noting that the removal of the threat of a minority veto allows President Obama to confirm not only a greater number of judges, but also ones who are more left-leaning (potentially to a significant degree) than Senate Republicans would have allowed.

As Supreme Court Justice Sonia Sotomayor stated in 2005, back when she was a judge on the Second Circuit Court of Appeals, appeals courts are “where policy is made.”

Despite the uproar this statement caused in conservative circles, legal scholars noted that Sotomayor was absolutely correct in her statement, and that this reality is nothing new.  After all, the Supreme Court decides less than 100 cases a year, while the federal courts of appeals decide thousands.

In other words, the Senate rules change eliminating the filibuster will have an immediate impact on the precedential direction that the federal courts travel for, potentially, the next several decades.

And, despite Republican outcry over the rule change, it is extraordinarily unlikely that, should Republicans take majority control of the Senate in 2014 or at any time thereafter, they will undo this change.  In the current highly partisan environment, Republicans will not want to risk similar Democratic stonewalling with a Republican in the White House.

It appears, then, the new rule – as controversial as it may be – is here to stay.