Image 01 Image 03

The Next Congress and the Nuclear Option

The Next Congress and the Nuclear Option


When Barack Obama took office in 2008, one of the most difficult things for conservatives was the fact that he soon had a compliant and Democrat-controlled Congress to do his bidding. With the defection of Arlen Specter in April of 2009 and the seating of Al Franken as a result of the disputed Minnesota senatorial race, the Republicans lacked even the 41 votes necessary to stop the Democrats in the Senate, although they finally gained exactly that number with the surprise election of Scott Brown of Massachusetts.

However, after that point, the Republicans in Congress were able to stop some of the Obama agenda after gaining the ability to muster at least 41 votes in the Senate, and after they gained the House in 2010. That’s why the Democrats in the Senate triggered the nuclear option for judicial appointments in November of 2013, when they still controlled both the presidency and the Senate but the Republicans had gained enough senators to block judicial confirmation under the old (non-nuclear) rules. But under the new nuclear option rules (see this for a full explanation of how it works), a simple majority of Democrats could successfully force a vote to confirm Obama’s judicial appointments, rather than needing to gain 60 votes to close down debate.

After the GOP took control of the Senate in 2014, the nuclear option ceased to be as helpful for the Democrats because the GOP majority could now block Obama’s appointments (which they did, for example, in the case of Obama’s attempt to put Garland on the Supreme Court). And it was not just Garland they stopped, either; there were others.

Not everyone remembers all of this Senate history. But for those who do remember it, it probably came as no surprise when Harry Reid mentioned recently that the next Senate will probably re-activate the nuclear option for judicial appointment confirmations, and when Hillary’s running mate Tim Kaine repeated the idea last Friday. Most Americans who don’t follow the details of politics probably don’t pay attention to the ins and outs of this sort of thing, but the bottom line is that the motivation for the dominant party to activate the nuclear option comes into play mainly when a president and Senate are controlled by that same party, but when the opposition party also has at least 41 votes in the Senate.

That’s one of the reasons why the question of which party controls Congress is exceedingly important; gridlock can be a very good thing when a president whose agenda you distrust and/or fear has been elected. And that’s why the possibility of Trump’s negative coattails in 2016 looms large. If Hillary Clinton becomes the next president and the Democrats take control of the Senate with the GOP retaining at least 41 seats, that would set up a situation in which the nuclear option for judicial appointments could once again come into play.

What about the Democrats using the nuclear option for legislation other than approval of judicial appointments? Reid didn’t mention that, but his forbearance on that score probably comes from the fact that the Democrats are not projected to take the House this year. Without control of the House, it probably wouldn’t do the Democrats much good to exercise the nuclear option in the Senate for issues other than judicial appointments, because most legislation needs to be approved by both houses of Congress. The reason the nuclear option for judicial appointments is especially tempting is that judicial appointments are confirmed by a vote in the Senate only.

It should be clear why the situation in which Hillary Clinton would be president and both houses of Congress would be in Democratic hands is to be very much feared. If that were the case, the Democrats might even decide to invoke the nuclear option not just for judicial appointments but more generally, in order to maximize Democratic power to do things without interference from the 41+ GOP senators.

All of this further drives home the fact that, whomever you choose to vote for at the top of the ticket, it is exceedingly important to go to the polls on Election Day and vote for Republicans in Congress. And it also explains why Ted Cruz has been busy saying that a Republican Senate could and would continue to block any of Hillary’s SCOTUS appointment, just as they did after the 2014 election with Obama’s.

In summary, it is of the utmost importance that the GOP holds the House, which it seems likely to do. But the Senate outlook is very iffy—so please make sure to vote and not stay home.

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


Donations tax deductible
to the full extent allowed by law.


Yeeeeep. Well-written and sound, as pretty much always, Neo.

Morning Sunshine | November 1, 2016 at 11:58 am

Another nice thing about an R congress is that they will fight a Pres. Trump MUCH MUCH more than they will fight a Pres. Hillary.

buckeyeminuteman | November 1, 2016 at 12:23 pm

Democrats publicly lament that Republicans won’t work with them and compromise on issues. But Democrats change the rules in the middle of the game as evidenced by the nuclear option. Why on earth should they compromise when everybody isn’t playing by the same set of rules as Hillary whines about?

The “kaboom” I’d like to hear is somebody bashing this pathetic troll’s other eye out.

There is only one reason the Senate is in play: its Crying Boehners, led by the grotesque Mitchell McConnell.

Look for a continuing ping-ponging of power and the loss of the senate until the rino hacks hogging the leadership positions of the GOP are sent packing.

MaggotAtBroadAndWall | November 1, 2016 at 1:38 pm

You can be sure Reid’s signaling to nuke the filibuster for SCOTUS appointments reflects the fact that he understands that IF Democrats win control of the Senate, it will likely be temporary. Wikipedia already has an entry for the 2018 Senate map. Assuming it is accurate, it looks very favorable for Republicans. Democrats have to defend 25 seats (including the two pretend Independents who caucus with Democrats). Wiki has 11 of those D races as competitive and only 2 of the Rs as competitive. When I eyeball it, I think only about five or six are truly competitive on the D side, but both Rs they have listed as competitive do appear to be at risk due to shifting demographics (AZ and NV). You may disagree.,_2018

The major point I am making is that even if Rs lose the Senate this year, as long as it is only by a seat or two then they stand a good shot at regaining control in 2018. So assuming Hillary wins, she will only have a two year window to stack SCOTUS after they nuke the filibuster.

So if Ds take control of the Senate, expect op-eds and left wing rags to begin calling for Ginsberg and Breyer to step down as soon as November 9. Plus, there was a rumor floating a few months ago that Thomas wants to retire. So we could be looking at four potential replacements for Scalia, Thomas, Ginsberg, and Breyer, assuming none of the other justices drop dead.

The easiest way to “fix’ this problem is to do what Ted Cruz did, vote straight R.

[t]he Democrats might even decide to invoke the nuclear option not just for judicial appointments but more generally, in order to maximize Democratic power to do things without interference from the 41+ GOP senators.

This would last exactly ONE presidential term. The damage to the Republic would be so vast and obvious that the next election would be a Tea-Party-esque wave like nothing ever seen before.

The litmus test for any politician running in that election would have to be “Will you commit, right now, to repealing EVERYTHING done in the last election with your dying breath?” If the answer is no, you’re not the candidate we want to run.

Upon election, the Republicans then, immediately and without fanfare, repeal EVERYTHING that was done, and immediately ram-rod through every single change that is necessary to the correcting of the Republic, with the barest majority and as early as possible to allow it to settle into the public’s perception.

When the Democrat members scream about “minority rights,” tell them: “shut up. YOUR former leadership excised your vaunted ‘minority rights’ for a transient power-play. You brought this upon yourselves by your shenanigans, now WE’RE going to fix it.”

    Henry Hawkins in reply to Chuck Skinner. | November 1, 2016 at 3:41 pm

    Great plan, the only viable plan really, which means the current GOP will not pursue it.

    That’s exactly what we thought in 2008. Two years of unrestrained power in the Executive and Legislative branches was all they needed to spike the heck out of the country and embed legislation rammed through by one or two vote majorities. Republicans reclaimed the House in the next election and the Senate later, but the damage had already been done, and billions of dollars siphoned off into Democrat crony pockets that would never come back.

    Anybody want to bet on their two-year list being all written down and ready to be pipelined through the process this time? That trillion-dollar ’emergency’ bill they rammed through in Jan-09 is going to look like small potatoes.

May his gym equipment rise up again and smite him down.

Henry Hawkins | November 1, 2016 at 3:44 pm

A man called me yesterday and asked if I knew whether Harry Reid dresses up as a farm maiden and uses goats, sheep, and hogs as sex toys. I personally have no idea, but hey, people are asking questions.

Reid understands one thing – POWER.

good = anything that supports him getting or keeping more power
bad = anything that interrupts him getting or keeping more power

EVERYTHING else is secondary

    Ragspierre in reply to Dr P. | November 1, 2016 at 4:50 pm

    Which is at the same time true, depressing, and a bit of a surprise.

    Reid was, a decade or two ago, a proponent of many things we espouse now, including border security, budget restraints, 2nd Amendment rights, etc.

    You would not recognize the guy. Seriously. Even Hellary was once a “law and order” believer, and a staunch defender of the definition of marriage.

    Where’d they go…??? (They chased power down to hell.)

      Henry Hawkins in reply to Ragspierre. | November 1, 2016 at 7:39 pm

      PWS – Political Weathervane Syndrome

      “Even Hellary was once a “law and order” believer…”

      When? Before Watergate, Whitewater, and the Rose law firm days? Maybe when she was a child, and that ain’t so clear.

      I think you mean she would pretend to be a law and order type, in order to pander for the vote.

“But the Senate outlook is very iffy—so please make sure to vote and not stay home.”


I’m not voting for more Failure Theater

I’m not voting to give perks to the people who have betrayed their based over and over and over again.

If the GOP wants my support, they need to demonstrate good faith on two key issues:

1) stop rolling spending into omnibus bills. Its a cheap trick to avoid responsibility and sets up the Failure Theater of just pretending to want less gov growth and spending.

2) enforce border security. The GOP has promised us THREE times over the course of 20 years that if we compromised and supported amnesty now, they would secure the border later. And three times the GOP broke that promise.

As it stands, the GOP (esp the Senate) is about being Dem-lite. Their position is the equivalent of downshifting to 3rd gear so that the Republic goes off the cliff at 30mph instead of the Dems preferred 55mph.

Why should I reward people who not only won’t fight for us, but who routinely stab us in the back?