Nuclear Option

Warren: Republican Senators Are Trying to 'Nullify' the 2012 Election

By Philip Bump

Did the voters of Massachusetts know, when they elected Elizabeth Warren to the Senate, that she advocates nuclear war? In the wake of another Republican filibuster of another Obama judicial nominee, Warren is supporting reform of Senate filibuster rules — the so-called "nuclear option" — and calls the on-going obstructionism an attempt to "nullify the results of the last election."

Warren backed the nuclear option came after the Tuesday filibuster of Cornelia Pillard, nominated, as many before her have been, to fill an empty seat on the D.C. District Court of Appeals. The D.C. District is one of the country's most powerful, as it considers challenges to federal legislation. Senate rules allow members to filibuster most legislation and decisions, which has meant that, with increasing frequency, 60 votes are needed to end the filibuster and advance any vote. It allows Senate Republicans, who lack 50 votes but have more than 40, to block legislation if they vote in unison. The nuclear option would change the rule to make nominees immune to filibuster — a rules change that itself can't be filibustered, letting the Democratic majority do what it wants.

The filibuster of presidential nominees has inspired particular fury from the left, largely because such votes are taken under the "advise and consent" provision of the Constitution. A filibuster can block an egregious candidate, but now it's used to block any candidate.

Last week, we pointed to a piece from New York's Jonathan Chait with quoted Sen. Chuck Grassley arguing that a filibuster was necessary to prevent a federal appeals court from becoming unbalanced. Chait's response: Yes, that's the point. Americans elect a president; that president is empowered to appoint judges; over time, the balance of power on courts ebbs and flows.

This was the point Warren made on Wednesday in advocating for a revision to the filibuster rules that would prevent the action on presidential nominations. From Politico:

“So far [Republicans] have shut down the government, they have filibustered people [President Obama] has nominated to fill out his administration and they are now filibustering judges to block him from filling any of the vacancies with highly qualified people: We need to call out these filibusters for what they are: Naked attempts to nullify the results of the last election,” Warren said.

She isn't the first to make that argument. During the shutdown, portraying Republican obstructionism against Obamacare as an attempt to retroactively make Mitt Romney the 2012 winner became a party talking point (however officially). In light of Grassley's argument, it seems there's a stronger case to be made here. "Let's pretend that President Obama wasn't elected," it seems to say, filling no more seats and not giving the Democrats any advantage.

In The New York Times' report on the Pillard filibuster reveals the possible downside to the Democratic threat.

Senator Charles E. Grassley, Republican of Iowa, who is a senior member of the Judiciary Committee, dared Democrats to change the rules, saying it would come back to haunt them if they lost the majority.

“Go ahead,” Mr. Grassley said. “There are a lot more Scalias and Thomases that we’d love to put on the bench,” referring to Justices Antonin Scalia and Clarence Thomas of the Supreme Court.

Grassley's concern for balance seems a bit temperamental.