‘Nuclear Option’ Could Damage Both Parties

Posted March 16, 2005 at 3:38pm

Back in the 1960s, when talk of a nuclear exchange between the United States and the Soviet Union was all too real, everyone agreed that both countries would suffer heavy losses from a nuclear war. And that made a nuclear attack — and the inevitable nuclear response — unthinkable. [IMGCAP(1)]

Maybe that’s something Republican and Democratic legislators and strategists should consider as the two parties veer toward a confrontation over judges on Capitol Hill.

The “nuclear option” in this case refers to the potential GOP strategy to avoid a Democratic filibuster on Bush-nominated judges, combined with the Democratic reaction to that strategy. It would come into play if the Senate’s presiding officer rules that only a majority of the Senate is needed to force a vote on judicial nominees and if Senate Republicans are able to sustain the ruling of the chair.

Democrats say that if the Republicans “blow up the Senate” by ending filibusters during the confirmation of federal judges — including, of course, nominations to fill expected Supreme Court vacancies — they will retaliate with every weapon at their disposal, including essentially shutting down the Senate.

Regardless of whether you believe that the Democrats have gone too far in stopping the confirmation of a handful of high-profile conservative jurists nominated by President Bush, or, conversely, see a GOP-led attempt to end judicial filibusters as inappropriate and even dangerous, most people should be able to agree that it would be better to avoid a legislative and constitutional crisis.

But, purely from a political point of view, how would the parties fare if they came to blows over judges?

Let’s assume that the Democrats use all the procedural tools available to them and are committed to blocking Senate business until the Republicans agree to recognize the need for a supermajority to confirm judges. How would the country react?

The Republicans almost certainly would be the first ones to absorb a negative media hit, as journalists report that Senate Republicans have “changed the rules of the game” and are abusing their power in their efforts to confirm judges that the Democrats oppose.

Democrats would encourage the media’s line of argument by noting that Republicans blocked many Clinton nominees in committee, preventing those nominees even from reaching the Senate floor. And Democratic officeholders of all kinds would attempt to paint the Republicans as waging a political jihad to cripple the Democratic Party and destroy the two-party system.

Barring the existence of a news story of equal importance, such as the capture of Osama bin Laden or a major terrorist attack, the Senate “nuclear option” story would dominate the news for days, even weeks.

While Republicans would seek to put their strategy into a more positive historical context and demonize the Democrats for frustrating the will of the majority and politicizing judicial confirmations, the GOP tactic would probably draw most of the attention. And if so, the party would be at risk of a backlash.

However, the longer that the confrontation on Capitol Hill continued, the more the Democrats’ vulnerability would grow.

After a couple of weeks of bringing the Senate to a halt, public opinion might well begin to shift, with Democratic tactics coming under increased scrutiny and generating increased criticism.

Even if voters agree that the Republicans were wrong in changing the rules of the game by requiring only a majority in the Senate to confirm judges, they might also tire of Democrats’ tactics of protest. After all, in adopting delaying tactics, Democrats would be blocking Congress from dealing with Social Security, education and taxes — not to mention appropriations.

Like the Republicans who “shut down the government” in 1995, Senate Democrats would likely be viewed ultimately as behaving irresponsibly.

Voters believe that they are sending their Representatives and Senators to Washington to deal with the major issues of the day. The average American tends not to focus on process issues, whether redistricting or parliamentary maneuvering on the floors of Congress, but rather on output, results and action.

The most politically active partisans would blame the other party. But most other Americans, even if they understood and sympathized with the Democrats’ complaints, would likely hold the Democrats responsible for shutting down Congress.

Ultimately, both parties would be at risk, giving an effective weapon to third-party or Independent political hopefuls who would point to the gridlock as evidence that neither of the two major parties is capable of governing. The system, they would say, is broke.

It’s been more than a dozen years since Ross Perot’s 1992 race for the White House. A dozen years before him, in 1980, John Anderson ran as a credible Independent. A dozen years before that, in 1968, American Independent Party candidate George Wallace ran a high-profile race for the White House.

A “nuclear” confrontation over judges could well sour many Americans on both parties, quite possibly giving rise to another wave of outsider, change rhetoric and a producing a political figure who promises to change the way Washington works.

Stuart Rothenberg is editor of the Rothenberg Political Report.