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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