Our political system worked more or less well for more than two centuries, but its success has been based on the idea that the rules applied equally to all participants.
In November 2013, Senate Democrats upended decades of precedent to eliminate – by a simple majority vote – the filibuster for executive branch and judicial nominees. Referred to at the time as the “nuclear option,” it was a transparent setup to pack the vital D.C. Circuit Court of Appeals with liberal judges, appointed for life.
Minority Leader Mitch McConnell was justifiably furious. Then came the 2014 Republican sweep, and McConnell became Majority Leader, saying “The first thing I need to do is get the Senate back to normal.”
The Senate’s old modus operandi had in fact served the nation well, but these structures – which limit the Senate’s ability to act – require counterparties, like the president, to respects Constitutional boundaries on their authority. While American executives have long sought to extend the bounds of their authority, President Obama has repeatedly and flagrantly flouted Constitutional boundaries like no previous president, most recently with his unilateral action on immigration. When the president is acting unlawfully, Congress is duty-bound to use every power granted it by the Constitution to restrain his actions.
To fulfill this duty, Senate Republicans should detonate a nuclear option of their own. First, they should reinstate the filibuster for judicial appointments – if there is any act that warrants a supermajority, it’s the confirmation of a Federal judge to a lifetime appointment. Second, they should eliminate the filibuster for normal legislation and procedural matters. Third, they should schedule the old rules to be automatically reinstated when the next Senate – and the next president – take office. Last, they should eliminate the “nuclear option” once and for all; in the future, changes to voting thresholds should require sixty votes.
Had the Senate gone this route, the president would have been forced to between continuing his unconstitutional amnesty and funding the Department of Homeland Security. Would the end result have been better? It’s impossible to say, but at least the Republicans – elected on pledges of stopping the president’s overreaches – would have done everything in their power to vindicate their electoral promises.