Following up my early morning nuclear option post …
I appreciate Jon Bernstein’s nuanced and thoughtful response on the credibility of minority party threats to go nuclear were the majority to employ the nuclear option. He asks the critical question: “After majority-imposed reform is imposed, does it makes sense to carry out that threat?” Jon’s skepticism here is well-taken. Still, it’s remarkable how few majorities have been willing to consider taking the gamble. Frist and many of his fellow partisans in 2005 seemed ready, but they are nearly an historical anomaly. I think it’s helpful to keep in mind that the GOP would not actually have to blow up every bridge to impose a steep cost on the majority party’s agenda. With apologies for quoting at length, this is how we put it it back in 2007:
Why would the threat of minority obstruction out weigh the majority party’s threat to reform-by-ruling? The minority is not helpless. If the ruling is limited to judicial nominations, as former Majority Leader Frist insisted in 2005 that it would be, the minority could filibuster any other debatable measure in anticipation of a Republican move to bring up a controversial judicial nomination. They could object to routine unanimous consent requests, which would require the majority instead to adopt a routine motion or even force the majority to secure sixty votes to impose cloture. If used widely, such moves could radically slow Senate action on all matters, a majority leader’s worst nightmare. The minority’s leverage under existing Senate rules and practices seems to counter the majority’s technical ability to go nuclear by reinterpreting existing chamber rules via new precedents.
Hard to know for sure how much to discount a counter-threat from the GOP.
Also, Richard Arenberg—co-author, with retired Senate parliamentarian Bob Dove, of Defending the Filibuster: The Soul of the Senate—weighs in on the nuclear option here with some interesting detail and perspective. I think his third point is worth highlighting in particular, as it reinforces questions about the precise set of parliamentary moves needed to go nuclear. The CRS report that I mentioned in my previous post goes into nuanced detail on this matter.