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In our opinion: 'Nuclear option' was a bad move

Published: Monday, Nov. 25 2013 12:00 a.m. MST

Senate Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt., seated at center right, expresses frustration as the seats on the Republican side of the panel remain empty, causing the cancellation of an executive meeting to consider a dozen of President Barack Obama’s judicial nominations, Thursday, Nov. 21, 2013, on Capitol Hill in Washington. The Senate is nearing a potential showdown on curbing the power that the Republican minority has to block President Barack Obama's nominations, as majority Democrats edge toward forcing a rewrite of filibuster rules through the chamber require only 51 votes to end filibusters and other delaying tactics.

J. Scott Applewhite, Associated Press

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First, it is important to understand what the Senate’s new filibuster rule — the so-called nuclear option — is not.

It does not end the minority party’s ability to filibuster legislation. Democrats still would need 60 votes to overcome a Republican filibuster on a proposed law. It also does not put an end to actual, speak-until-you-drop filibusters such as the one by Sen. Ted Cruz, R-Texas, earlier this year. He still could recite Dr. Seuss rhymes in opposition to any bill or appointment.

The rule also does not prohibit filibusters against Supreme Court nominees, although the veracity of that statement seems to be a point of contention with some.

What Senate Democrats did last week was eliminate filibusters to most presidential appointments and nominations.

But while the move is somewhat limited, its long-term effects may be much broader, especially given the sour and cantankerous mood in Washington. Democrats are certainly aware that whatever rules they make now will be used against them one day when they are in the minority. Republicans, seething from how they were treated as a minority, may take advantage when that day comes and extend the new rules to cover legislation, as well. That would give them the opportunity to overturn Obamacare with a simple majority vote.

Governing is seldom as simple as that, of course. Both sides surely are aware that a procedural war against the minority party would limit their own powers in the long run. As long as nuclear war language is being bandied about, this knowledge is the equivalent of “mutually assured destruction” as a deterrent.

Democrats are understandably upset that Republicans have blocked some recent judicial appointments. Republicans faced the same frustrations eight years ago, when they controlled the Senate. But Republicans back then stopped short of changing the rules. Democrats this week did not, and that was a bad move.

It is a further signal of the breakdown of cooperation in Washington, and it almost certainly will lead to an escalation of partisan bickering.

At its most basic level, democracy is about majority rule. But the U.S. system of democracy has always included protections against the tyranny of the majority. The House long ago did away with the filibuster, but the Senate has considered itself a more deliberative body where minority views are considered. Sometimes, filibuster rules have empowered less-than-noble causes, as when Southern Democrats stalled civil rights legislation. But in an age when cooperation is at a minimum, the filibuster at least forces senators to work together in order to accomplish anything.

Too often these days, of course, they simply remain at odds and do nothing.

At the heart of this issue is a concern over the makeup of the D.C. Circuit Court of Appeals, which is seen as second in importance only to the Supreme Court. President Obama’s nominees to that court would provide it with a liberal majority, and so Republicans had filibustered to block them.

Back in 2005, a crisis was averted when a bipartisan group of 14 senators stepped forward and forged an agreement. It would have been much better for all concerned if the current impasse had been allowed to continue until such a solution had presented itself again.

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