Mr. Smith Is Vaporized in the Fire of a Thousand Suns

It hasn't gotten too much attention given the other things that are going on, but there is a battle looming this summer over the filibuster, one that could be a significant milestone in the already poisonous relationship between the parties on Capitol Hill. As Republicans have moved from filibustering every significant piece of legislation to also filibustering cabinet nominees (something that was extraordinarily rare until now), Democrats' frustration on the filibuster has grown. Senate Majority Leader Harry Reid is threatening to use the "nuclear option," forcing a vote to change Senate rules to circumvent the filibuster (though probably only on presidential nominations).

Reid would no doubt be cheered by many on the left if he did so, but others will warn to be careful what you wish for. After all, once you remove the filibuster, doesn't that open the door to Republicans running roughshod over the Democrats if and when they get the majority back in the Senate?

Let's be realistic here. Unless there's some kind of major upheaval within the Republican party that moves it back to the center, when the day comes that there's a Republican president and a Republican senate, the filibuster will be gone. It won't take a Democratic minority using it with the profligacy Republicans have, either. All it will take is one filibuster on something Republicans care about. Today's Republicans don't care about the institution's traditions, or about what kind of precedent they might set. They care about getting what they want. If you think they won't do it, you haven't been paying much attention to American politics over the last five years.

Does that mean Harry Reid should just go ahead and go nuclear? Not necessarily. To be honest, I'm not sure how it should weigh on people's judgment of the current filibuster controversy. But we shouldn't have any delusions about what Republicans will do when they have the chance and it's in their interest.

When this debate gains steam over the summer, Republicans are going to point out that in 2005, when Democrats filibustered a few of George W. Bush's particularly extreme judicial nominees and then-majority leader Bill Frist threatened to use the nuclear option to break the filibusters, Democrats went nuts. And indeed they did. Hypocrisy? Perhaps, but one could argue that if filibusters are appropriate anywhere, it would be on judicial nominations, because those are lifetime appointments. Short of impeachment, a judicial appointment can't be undone, unlike a piece of legislation. And a cabinet nomination is where a filibuster is least appropriate; unless a nominee is some kind of criminal, he or she is going to be doing little more than enacting the president's policies, so the president ought to have the right to appoint pretty much whomever he wants.

Reid has said that he might go nuclear if Republicans filibuster three of Obama's nominees: Thomas Perez to be secretary of Labor, Richard Cordray to head the Consumer Financial Protection Bureau, Tand Gina McCarthy to lead the Environmental Protection Agency. Republican are holding up each of these nominees for slightly different reasons, none of them particularly legitimate. They oppose Perez because as the head of the Civil Rights Division of the Justice Department, he was in their view overly concerned with discrimination committed against groups like blacks and Hispanics, and insufficiently concerned with discrimination against white people. In Cordray's case, they have no objection to him personally, but they don't believe the agency he's been appointed to lead should exist. Because after all, what business does the government have protecting consumers? So they've decided to block anyone who gets appointed to the job as a way of sabotaging the CFPB. And in the case of Gina McCarthy, they'll say that they're OK with there being an Environmental Protection Agency, so long as it doesn't do much to protect the environment, and since McCarthy seems interested in doing so, she's a problematic appointee.

Jonathan Bernstein argues persuasively that Reid is engaged in a delicate game of chicken here. By laying down a specific marker of these three nominees, he's given the Republicans a way out that would forestall the nuclear option but perhaps restrain the filibuster a bit. The larger outcome he'd prefer is that the threat of the nuclear option leads Republicans to back off more generally, restoring the filibuster to what it used to be: something that was used rarely and judiciously (you can also read Sarah Binder for more on this, including some of the procedural arcana).

And I think the first part of that is the most likely outcome, which is similar to what happened in 2005. Democrats ended up letting Bush's controversial judicial nominees through, but retained their ability to filibuster in the future; Republicans could well allow votes on these three nominees and perhaps signal that they'll be a little more forthcoming on future appointments, but continue to filibuster every important piece of legislation. No matter what though, I'll repeat what I said earlier: when the day comes that the filibuster is an impediment to what Republicans want to do, they'll eliminate it as soon as they can. The last time they held the presidency and the Senate was 2006, and the GOP is a radically different party from what it was then.

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