Nuclear double-down on horizon?

By

LeRoy Goldman

BlueRidgeNow 
Times-News Online
 September 18, 2016

Let's assume that the current polling is an accurate harbinger of what's to come on November 8^th. If so, it suggests that Hillary Clinton will be elected President, and the Democrats will regain control of the United States Senate. If she wins, the Democrats will only need to gain four seats to reclaim control of the Senate. However, it's also a certainty that the Democrats will fall far short of the 60 vote super majority required to shut down Republican led filibusters to Supreme Court nominations submitted by President Clinton. The intriguing question is what will the Democrats do to attempt to solve that problem. It's a consequential question that could profoundly alter the Supreme Court.

Looking back enables us to look forward with clarity. When Justice Antonin Scalia, the Supreme Court's leading conservative jurist, died earlier this year President Obama nominated Merrick Garland, a moderate, to replace him. The Republicans, who currently control the Senate, immediately announced that would not vote on Garland's nomination until a new president took office. Thus, Garland's nomination has been in limbo and before the Senate longer than any other nomination to the High Court. With only eight justices the Court has begun to deadlock, 4-4, on cases presenting significant constitutional questions. The impasse over the Garland nomination is politically supercharged and intensely bitter. It shines a bright light on the polarity and paralysis between Democrats and Republicans, as well as the President and the Senate.

Looking back a litter farther, to 2013, enables us to see how this impasse might be ended by the Democrats in a spectacularly controversial way—by using the Nuclear Option, again!

Everybody knows the Senate no longer works. It has become a pathetic shadow of its former self. The Senate Manual on Rules and Procedures defies understanding. Its length alone, over 700 pages, is a labyrinth of complexity. But to the Senate's great credit it found a way long ago to function well in spite of such mind boggling rules. Amazingly, it circumvented its own rules by operating with the repeated use of Unanimous Consent Agreements (UCA). A UCA means exactly what its name implies, the unanimous consent of all Senators. Once a UCA had been agreed to with respect to legislation or a judicial nomination the matter could then be acted upon, amended, approved, or defeated.

But those days are long gone. Now the Minority party, whether Democrat or Republican, employs the filibuster or the threat of a filibuster to hamstring almost everything coming before the Senate. In November of 2013 at the behest of then Senate Majority Leader Harry Reid (D-NV) the Democrats struck. They approved by a vote of 52-48 what became known as the Limited Nuclear Option. Its adoption changed the Senate rules such that the Minority could no longer use the filibuster to block Senate action on Executive Branch nominations or judicial nominations with the exception of nominations to the Supreme Court.

Obama has now had confirmed roughly a third of all Federal judges. As Jeffrey Toobin wrote in the New Yorker in October of 2014, “when President Obama took office, the full D.C. Circuit (Court of Appeals) had six judges appointed by Republican Presidents, three named by Democrats and two vacancies. Now it has seven Democratic appointees and four Republicans.”

When the new Congress convenes next January the Senate Democrats, if they have the majority, will face a monumental decision that will be made by their new Leader, Senator Chuck Schumer of New York. He will decide whether or not to pull the nuclear trigger again and expand its use to include nominations to the Supreme Court. There is little doubt that the Clinton Administration will privately urge him to do just that.

Hillary Clinton will have everything to gain and nothing to lose, if Schumer acquiesces to the pressure and the temptation to further transmogrify longstanding Senate tradition and procedure by pulling the nuclear trigger again.

That is so because it is a virtual certainty that she will have multiple opportunities to nominate new Supreme Court justices. Only once since 1952 has the party that won the presidency not been able to keep it for at least eight years. The exception was the defeat of President Carter in 1980.

Thus, history teaches us that it is very likely that Clinton or another Democrat will be in office until at least 2024. And, in addition to the vacancy created by the death of Justice Scalia, by 2024 Justice Ginsburg will be 91, Justice Kennedy will be 88, Justice Breyer will be 86, Justice Thomas will be 76, and Justice Alito will be 74.

The central question is whether Chuck Schumer will be stooge to Clinton, as Harry Reid was stooge to Obama. This time the stakes are incalculably higher.

LeRoy Goldman welcomes comments and can be reached at:

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