The Nuclear Option was used for the first time by Harry Reid in 2013 to allow Obama to stuff the lower federal courts with Obama nominees despite Democrats not having a filibuster proof majority in the Senate at the time. It was a clear possibility at the time that Democrats were about to lose control of the Senate in the 2014 cycle, so the court-stuffing Nuclear Option was a desperate last-minute tactic.

Democrats said that rule change would not apply to the Supreme Court. Holding back on using the Nuclear Option for the Supreme Court was a meaningless gesture at the time, because there were no Supreme Court vacancies.

Once Republicans took control of the Senate in 2014, the Nuclear Option no longer was available to Democrats because they couldn’t even win a simple majority.

Late in this presidential election cycle, Democrat leaders Harry Reid and Tim Kaine both threatened that if Hillary won and Democrats regained control of the Senate — which they expected to happen — Democrats would use the Nuclear Option to get a Democratic nominee to the Supreme Court confirmed.

The election didn’t turn out as Reid and Kaine expected, but those threats may come back to haunt Democrats, when President Trump nominates someone to fill the vacant Scalia seat.

Democrats are apoplectic at the prospect, claiming that Republicans are stealing the seat by not allowing Obama’s nominee Merrick Garland to be confirmed. Expect Democrats to filibuster all but the most milktoastee Trump nominee.

If Trump nominates someone with a similar conservative foundation and judicial outlook as Scalia, Senate Majority Leader Mitch McConnell will have to decide whether to go nuclear.

McConnell warned Democrats in 2013 that they would regret going nuclear:

There have been some prior indications McConnell would not go nuclear, but Politico is reporting it’s still on the table, GOP could nuke filibuster for Supreme Court nominees:

Top Senate Republicans are drawing a hard line on the Supreme Court, guaranteeing that no matter what tactics Democrats deploy, they will be forced to swallow Donald Trump’s imminent nominee to the high court. Republicans won’t come out and say it, but there’s an implicit threat in their confidence: If Democrats play things the wrong way, they might find themselves on the wrong end of a legacy-defining change to Senate rules that scraps the chamber’s 60-vote threshold to confirm Supreme Court nominees. “We’re going to confirm the president’s nominee one way or the other. And there’s an easy way and there’s a hard way,” said Senate Majority Whip John Cornyn (R-Texas). “They just need to accept that reality.” “The Democrats will not succeed in filibustering a Supreme Court nominee,” said Sen. Ted Cruz, Cornyn’s Texas colleague. “We are going to confirm President Trump’s conservative Supreme Court justices.” Both Senate leaders, Majority Leader Mitch McConnell and incoming Minority Leader Chuck Schumer, have been mum on the topic.

“We’re going to confirm the president’s Supreme Court nominee one way or the other. And there’s an easy way and there’s a hard way." — JohnCornyn (@JohnCornyn) November 18, 2016

I’m not convinced McConnell will pull the trigger. Or that he even can. Not all Republicans are on board yet for a rule change:

On Wednesday, Sen. Orrin Hatch (R-Utah) may have put a dagger in the scheme. Asked by The Huffington Post about ending the filibuster, he was blunt. “Are you kidding?” he said with some vehemence. “I’m one of the biggest advocates for the filibuster. It’s the only way to protect the minority, and we’ve been in the minority a lot more than we’ve been in the majority. It’s just a great, great protection for the minority.” Hatch, the most senior member of the GOP, presides over the Senate every morning as the president pro tempore, making him third in the line of succession to the White House. He’s also chairman of the Senate Finance Committee. Hatch’s unequivocal support for the filibuster does not guarantee there won’t be changes to it, however. Asked about reforming the minority party blockade, famous filibusterer Sen. Rand Paul (R-Ky.) responded, “We’ll see.”

There are calls, like this one in National Review, not to do it, Don’t Nuke the Filibuster:

The filibuster has traditionally encouraged consensus in the Senate by stressing bipartisan cooperation. Cooperative norms have broken down in the federal government in recent years, but wiping away the filibuster could worsen partisan polarization. However they come down on the filibuster and the nuclear option (topics about which reasonable people can disagree), Republicans should keep their eyes on bigger visions and policy goals and not succumb to reflexively adversarian partisanship. Harry Reid’s legacy in Senate leadership will likely be one of partisan nihilism — the man who assailed the tradition of consensus and who shruggingly replied, “Romney didn’t win, did he?” to the accusation that he had lied about Mitt Romney’s not paying taxes. The next Congress should do — and our republic certainly deserves — better than that.

At this point, I think McConnell needs to go nuclear. The long term damage to the Senate was caused by Harry Reid. Democrats need to live with the consequences of their actions.

Going nuclear now will not be the cause of Democratic nuclear action in the future. Reid and Kaine already made clear what Democrats would do in the future.

There is no bright and collegial future in the Senate. One of the most disgusting political creatures in the history of the nation, Harry Reid, made sure to that.



