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The nuclear option and risk: why now?

The nuclear option and risk: why now?

Both Democrats and Republicans have talked about the nuclear option for years—usually in favor of it when they’re the majority party and against it when in the minority. But it’s all been talk, till now.

So why did the Democrats finally do it? In the Wall Street Journal, James Taranto points out that in some ways the timing would appear to be self-destructive:

What’s peculiar about the timing of the Democrats’ decision is that it comes just when the partisan risk of abolishing the filibuster has been heightened…The abject failure of ObamaCare has made the prospect of a Republican Senate in 2015 and a Republican president in 2017 much likelier. Thus even from a purely partisan standpoint, rational Democrats would have been more cautious about invoking the nuclear option when they did than at just about any other time in the past five years.

Taranto goes on to explain the action in terms of what’s called “prospect theory,” which postulates that:

…people will take bigger risks in the hope of minimizing a loss than in the hope of maximizing a gain. The psychological impact of the loss itself clouds one’s thinking about the risks of magnifying the loss. That explains why the Democrats went nuclear just as the perils of doing so multiplied.

That may be true, but it’s not so clear that the perils of an action such as this have multiplied for the Democrats, if you look at it from their point of view. They may not consider the risks to be very great at all.

Here’s why: Democrats may suspect they’re on their way out soon, but they may think their loss inevitable and therefore unstoppable at this point, as well as temporary. So by doing this now, they’ll enable Obama to play out his very liberal agenda to much greater effect, and will be able to institutionalize changes in the judiciary that will benefit the Democrats in the long run.

But even more important is that the Democrats may have believed (whether it’s true or not) that if they lost the Senate in 2014 it would be the Republicans who would then go for the nuclear option. So why not do it now themselves, when Democrats would be the beneficiaries for over a year?

But why didn’t they go even further and change the rule for other types of votes, too, not just for judicial appointments short of the Supreme Court? I firmly believe that the Democrats would have done that as well, if they thought it would have benefited them. But they probably calculated that at the moment it wouldn’t have done them much good because they don’t control the House, so why bother? I predict that they will extend it to apply to SCOTUS appointments, however, if within the next year something happens to any SCOTUS Justice and there’s the need to appoint a new member to the Court. There’s no way the Democratic majority in the Senate would allow the Republican minority there to block such an all-important choice.

They would also extend the nuclear option to apply to regular legislation if there is a chance of some of their pet legislative projects getting through the House. But until then, they will act as “moderate” as possible by limiting the scope of the new majority rule, leaving it up to the Republicans to go further (and incur lots of criticism for doing so) if they ever get into power.

The Democrats also realize that most people don’t really understand how cloture or the filibuster work, and may not understand the significance of the move the Democrats have made and just how hypocritical they are being. The Democrats sometimes underestimate the American public, but sometimes they get it just right, and it’s not clear which it is this time.

In sum, there’s a good chance that the Democrats didn’t think this move was all that risky considering their position prior to it, and considering what they thought Republicans were poised to do if and when they got to power. It’s difficult to say whether the GOP actually would have done so, but it doesn’t much matter at this point. What matters is that the Democrats may have thought they would.

But rest assured that if Republicans do become the majority in the Senate and extend the nuclear option to SCOTUS appointments and/or to ordinary bills, the Democrats will then excoriate them for their extreme and evil partisanship. You can bet on it.

[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]


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“The Democrats also realize that most people don’t really understand how cloture or the filibuster work,. . .” No, the fact is they don’t care. Democrats as a whole, those elected and those who vote for them, are proving to be the sleaziest, most intolerant, and most irrational people in our society. They are unthinking, lack integrity, care not a whit about the consequences of their actions, and refuse to look at alternatives. Incompetence reins in their party, from top to bottom, and each failure has been celebrated as an accomplishment. Each scandal has been brushed aside. Those who criticize them are demonized by the press. The GOP may be the party of stupid, but that may be because they try to play by the rules and attempt to be rational. Nothing the GOP has done in the past five years compares to the hideous behavior and actions of the Democrats. Their biggest problem is the fracture within their own party, and that is because they actually have diversity of thoughts and ideas unlike Democrats, who march in cadence to their Socialist leaders, and who are only capable of making left turns. The question is: which side needs to change their behavior to maintain our form of government?

Humphreys Executor | November 25, 2013 at 9:25 am

I agree with the preemptive strike theory. They need to get moving and pack the courts with lifetime liberal judges ASAP. And the general public doesn’t know or doesn’t care how much this will affect their lives for decades to come.

This move was directed by Obama to expand his power. Given his past behavior there is no reason to believe the stated limits of this rule will be observed.

>>”But even more important is that the Democrats may have believed (whether it’s true or not) that if they lost the Senate in 2014 it would be the Republicans who would then go for the nuclear option.””

The opposite, actually. One big reason the democrats did it is because they’ve calculated not only that can get away with it, but that the Republicans will never do it to them. Indeed, I believe they’ve correctly wagered that the republicans will even RESTORE the filibuster when/if they take back control. The democrats know how we play, how afraid of the media our side is and their incredible advantage.

This is simply the next ratchet upwards in the democrat-media power play in the transformation of America. They understand that most Americans don’t pay attention to these rules issues and that the GOP is pretty much unable and/or unwilling to direct an effective reprisal beyond the momentary splutterings of “leaders” like Mitch McConnell. Really — have we heard one virile, effective response from the GOP aside from the political puling that this was a “distraction” from Obamacare. The issue is already over with.

More and much worse is coming.

At a certain point in the conversation, the accountant/lawyer had to get off the phone. “I have to stop answering your questions,” he told Peter. “I can’t ethically advise you, because honestly I don’t know the right thing to do. Nobody does. There are no answers. Right now it’s a complete clusterfuck.”

So far, I’ve read two intriguing theories: 1. Obama wants to pack the IPAB (AKA Death Panel), and 2. Obama wants to pack the DC Circuit because they’re the ones who rule on the Constitutionality of federal regulations.

    NC Mountain Girl in reply to snopercod. | November 25, 2013 at 10:25 am

    A third one is that both narcissists and leftists tend to react they same way when events don’t go as planned. They double down on demands for unconditional support and threaten to purge those who aren’t 100 percent on board.

    You’re right. We risk getting over-analytical with all this. This was a naked power play. A chief component of that absolutely is packing the court in anticipation of losing seats in 2014. But I maintain that the democrats act with an increasing sense of audacity and long-term invulnerability. Sure, they’ll lose some seats in 2014. But they’re TOTALLY confident the media will carry their water and whip the GOP into submission during their brief political time-out. The democrat party simply does not fear the Republicans. They never will until we do to them what they do to us. And this will never happen. Not under current management anyway.

    Estragon in reply to snopercod. | November 25, 2013 at 5:53 pm

    It’s the DC Circuit, which has a 4-2 majority of judges appointed by GOP Presidents but three vacancies. It is one of the only circuits with no workload problems, though, and virtually every other vacancy at the circuit level is more important to fill sooner, based on need.

    But DC is where regulations are vetted for legality and lawsuits against the federal government are heard. So Obama does want to pack it with extreme leftists.

    Republicans in the Senate aren’t without recourse,though. There are many ways to slow things down in that body, and the closer to the midterm election, the less will get done anyway.

NC Mountain Girl | November 25, 2013 at 10:15 am

Why would the Republicans in the Senate decide to eliminate the filibuster after the 2014 election? After 2016 it is possible, but after 2014? How does eliminating the filibuster ever help the Republicans when the President is from the other party? The only way the Republicans can carry their agenda in 2015 and 2016 is in the unlikely event they have a veto proof majority in both houses, at which point the Democrats couldn’t filibuster anyway.

As for those stupid voters, they may not fully understand process but most do understand results. One or two reflexively ideological appointments of the kind that would have been filibustered that advocacy groups such as the NRA can run with and there could well be some second thoughts by many Democrats. That’s why Manchin and Pyror voted the other way. They understand it is hard enough being a Democrat Senator from a state outside the liberal enclaves without having to swallow every judicial appointment approved by the likes of most of the current members of the Judiciary committee.

Take a good look at who is one the judiciary committee. When Diana Feinstein seems to be the bastion of common sense among the Democrats on the committee, other Democrats have a serious problems. The line up of Leahy, Shumer, Durbin, Whitehouse, Klobuchar, Franken(?) Coons, Blumenthal and Hirono doesn’t exactly represent even a center-left perspective.

MaggotAtBroadAndWall | November 25, 2013 at 10:41 am

I don’t agree with any of the analysis I’ve read about why the Democrats did this, and have not seen my view mentioned by anyone else, so I admit up front I’m probably wrong. But here goes:

I think they did it because they believe they are in a position of strength, not weakness. They’ve been gorging on a diet fed to them by the media, left-wing pundits and Democratic strategists that Republicans can no longer win a national election for a variety of reasons: changing demographics of the electorate, ideological rigidity, etc. When you look at how Republicans have lost the popular vote in several of the last presidential elections, it is not a crazy belief. (However, lots of Republicans genuinely believed Karl Rove when he boasted that Republicans were on the verge of a permanent Republican majority for a generation just before Republicans lost both houses of Congress and the Presidency).

Democrats seem to genuinely believe the coalition they created to get Obama elected and held together for him t get re-elected is relatively permanent. They spent tens of millions of dollars on technology in the campaigns of ’08 and ’12 creating lists of voters who they can forever keep engaged in the process. They really honestly believe they’ve got a permanent edge now.

They may lose the Senate in 2014 because of anger about Obamacare, but if they do lose it, it will likely only be by a seat or two and the senatorial map looks much more friendly for Democrats in 2016 than 2014. And if the country really is yearning for a female president, Hillary brings with her the famous Clinton machine to compliment the Obama machine. With her coattails, the chances that Democrats win back the Senate in 2016 will be high.

If Repubicans do win the senate in 2014, Democrats believe it will be for only two years and they will be begging Republicans to change the filibuster rules for them when they re-take the Senate and possibly the House riding on Hillary’s coattails in 2016. That way they’ll have all three houses and Republican will have changed the filibuster for them in 2014, enabling them to impose their progressive utopia without the Republican minority being able to stop them.

    MaggotAtBroadAndWall in reply to MaggotAtBroadAndWall. | November 25, 2013 at 11:02 am

    After reading NC Mountain Girl’s comment, she is right that it would make no sense for Republicans to loosen the filibuster rules if they win the Senate in 2014, so my last paragraph doesn’t make sense. But the rest of the comment does seem to reflect how the Democrats may be thinking.

    You’re exactly right. But what you’re saying isn’t inconsistent with many of the other comments here.

    You’re right that the Left operates from a self-perceived position of strength. They always do. Even when defeated, they refuse to feel defeated. Defeat even empowers them, enrages them. They need to be demoralized. The kind of battle strategy required to crush and demoralize the Left is of such a nature as to be COMPLETELY INCOMPREHENSIBLE to the modern GOP. We are playing traditional collegial American political cricket against total animals. We need Lee Atwaters, George Pattons and Tecumseh Shermans. We’ve got Mitch McConnells and John Boehners.

I think it’s because the DC Circuit Court issues rulings on all manner of government regulations. We have seen with Obamacare that the Left’s favored method of governance is to pass vague legislation that transfers power to a department through regulation writing. If the court that rules on these regulations is ideologically in tune with the regulation writer, then the elected representatives dont’ have to make hard choices, and all of the dictates stand, actually strengthened, because Americans still view the Courts as fair.

    NC Mountain Girl in reply to J. Locke. | November 25, 2013 at 11:20 am

    There is another long term reason. For some time now the DC circuit has been seen as the place to groom future Supreme Court nominees. Not only does it review regulations, it offers the judges a prime opportunity to schmooze with the journalists and image makers who serve as the claque for future Supreme Court nominees. (Nominate a relative outsider who hasn’t done the proper schmoozing and the claque will scream in unison Unqualified!)

I believe Obama went to Reid and asked for an across the board kill of all filibusters, and that Reid convinced him a piecemeal approach is best, i.e., take each step, gauge political reaction, move to do the next when/as indicated.

The long term effect will be to strengthen the influence of the House of Representatives. As matter of governance, the purpose of the Senate as originally envisioned, was to slow down legislation. It was to serve as a check against the passions of the moment as represented by the House. Hence, the historical view of the Senate as the ‘deliberative’ body.

Now, by making the Senate more susceptible to the voters (i.e., more democratic), the House is immediately elevated in significance. I think this favors Republicans slightly more than Democrats because the American electorate remains center-right. With a more ‘democratic’ Senate, the blue state elites lose.


Dear Diary….

Life is, like, so totally boring and my parents are, like, so totally ugh. Mom is, like, still on me to clean my room up just like she was when I was 22. Jeez, like, I’m 25 now and shouldn’t be treated like some kid, you know.

Anyway, totally awesome Miley was on tonight but dad wanted to watch some, like, stupid news report about some stupid country somewhere that wants to, like, make uranium rich. He is always totally asshole about politics and, like, telling me how it is so important I vote.

Well, I voted for that cool black guy last time and now everyone who hates black guys are, like, totally freaking. His wife is, like, totally awesome.

I just wish they would stop showing the same dumb news and show more about Kane and Miley.

OK.. I promised dad I would vote so I did. Now can I go to the mall?

You are making a very incorrect assumption, and that is that the Republicans could ever figure out how to make capital on this. I think the Democrats are well aware of the self-destructive nature of the Republican party and that is mirrored in the comments of Senator McConnell. He immediately comes out and says that when the Republicans again gain control, they will elect to resume business as usual, as that is fair. And the word fair is what is killing this country and has brought down other countries in the past. If the Republicans gain control of the government, and had this rule in place, then they could actually rid of any changes made by the Democrats, but that would not be “fair”, so they won’t, but they will complain and eagerly put out their hands for money to those of us concerned (if any still exist). Once they have the money, they will head to the next capital hill cocktail party with their Democratic buds. And the cycle starts over again. So, no, the Republicans will do nothing.

    >You are making a very incorrect assumption,
    >and that is that the Republicans could ever
    >figure out how to make capital on this

    I make no such assumption. My point was that the elimination of the filibuster changes the dynamics of the power relationship between House and Senate and, to that extent, will favor the party that best reflects the electorate (i.e., the lower body). Since America is acknowledged by both left and right to lean center-right, this favors the party that most frequently represents that view.

    Whether or not Republicans are able to capitalize is another question altogether and one in which we may well agree. To your point, Republicans have never been a populist party, so they may well be unwilling to take advantage of the change. But, I think the historical context of this move by the Democrats favors the Republicans.


Amnesty. The Dems are setting up for amnesty. There is a good chance it will pass both House and Senate but, if not, Obama will pardon them all. True, the Constitution has always been understood to mean the pardon is for individuals. But in recent years it has been applied to individuals not even convicted of anything (e.g., Nixon). The next step is blanket pardons. The Constitution does not specify the nature of how the pardon is to be exercised.

If a suit is brought, assuming anybody has standing, it will most likely be in the D.C. court which Obama will have, by then, packed.

With 11 million new “legal” immigrants rapidly going on the voter rolls, the Dems WILL have a permanent majority in Congress, and there will likely be NO Republican president for as far as the eye can see. (It would be “cruel” and “Unfair” to deny them full citizenship they say already, and there is already a local/state movement for non-citizen voting).

The Dems may be taking a risk, but the potential payoff is a multi-generational one-party state.

enable Obama to play out his very liberal agenda to much greater effect, and will be able to institutionalize changes in the judiciary that will benefit the Democrats in the long run

This. +1. Times 100.

Democrats at this point are so invested in transforming America that they are willing to commit political suicide if that’s what it takes to change America irrevocably.

No longer are these people committed to political survival or even winning elections. They are about the destruction of the American culture.

    with the indoctrination going on in schools from k-12 to post graduate university programs, are they really committing political suicide? perhaps in the short term, but long term, liberals will just re-write history, and the kids will learn their version.

ufo destroyers | November 25, 2013 at 1:59 pm

Just as others have theorized earlier, the knowledge of these Senate rules is well beyond the scope of everyday life in America. And I am not outside that demographic, so forgive this simple approach. When the election is held eleven and a half months from now and the results are, how shall we say, problematic for a continuation of a Democrat controlled Senate, what would stop the Democrats from revising the rules again between election day +1 and January 3rd, which would reinstitute the filibuster rules? I mean they changed them on party lines, why cant they change them back on the same voting lines before the new swearing in in January? Then it would leave the Republicans on the hook if they wanted to use a nuke in the future and would return to the Dems the ability to filibuster on any future Republican nominees. It’s not like they’d have anything to lose in doing it since they would be out of the majority for at least two years. They would be packing the bench like there is no salary cap (the Yankees) and then when the new CBA (election) hit they would take the slap on the wrist and still be “winners.”

Phillep Harding | November 25, 2013 at 2:04 pm

The Dem’s are going to push something even more outrageous. Could be amnesty, might be something else. Or several other things.

If a year from now the Republicans win the Senate, the last act of the Dem Senate will be to reinstate the filibuster. And if two months later the new Senate abolishes the filibuster, the Dems will howl and the Media will declare the Repub Senate as the most partisan ever.

And Brian Williams will hyperventilate as he asks, “Is this the beginning of a Tea Party coup?”

What some in Congress forget is that Congress is empowered to set up the judiciary and also to dissolve it — that is if there are too many Dem judges, just abolish the positions. Viola!

The answer is painfully obvious. The very first step that one needs to take to set up a dictatorship/tyranny is to gain control of the courts. By enforcing the nuclear option, Obama can place as many ideologue judges in place (especially in the DC circuit court) so that he will then control the court verdicts. How else does one ensure they get their way and also get people’s loyalty? If Obama owns the judges, then any person indicted for carrying out an illegal act that Mr. Obama wants will be found innocent. Likewise, any opposition that Obama wants to muzzle can be brought up on trumped up charges and found guilty on the scantest of evidence. Lastly, it ensures that any law suit against the EPA, Labor, or whomever will always be resolved in Obama’s favor. I do believe that we are in for one rocky, horrible three years of government sponsored lawlessness, but, then again, I’m an optimist.