On the nuclear option and Lindsey Graham

I agree generally with John’s analysis of the Democrats’ use of the “nuclear option” to do away with the filibuster of nominees for district court and appellate judgeships and for non-judicial presidential appointments. By virtue of this option, such nominees now can be confirmed with 51 votes, instead of 60.

In my view, a simple majority is the appropriate threshold for cabinet members and alike. When it comes to judges, who are appointed for life, I see the case for a higher threshold, but don’t have strong feelings either way. The important thing is that the rules be the same for both parties.

In theory, the filibuster has been preserved for Supreme Court nominees, but the Democrats will put an end to it just as soon as they need to in order to confirm a nominee. If they don’t, the Republicans will — and should.

I want to add two observations. First, unlike John, I see a sound logic in Harry Reid’s decision to go nuclear. Republicans were blocking three nominees to the powerful D.C. Circuit, which passes on key regulatory matters. President Obama needs these judges confirmed, not because the court was understaffed (its workload doesn’t warrant more judges), but because he needs to turn the court into a majority-Democrat body. Thanks to Reid, he will now accomplish this.

In addition, I doubt that Reid shares John’s view that a Republican will probably win the White House in 2016 (I take no position on this). As for the Senate, Reid knows that, while the Republicans probably will pick up seats in 2014, though not necessarily the five they need, the math favors the Dems in 2016, when the winners from 2010 will face reelection.

My second observation is that today’s events make Lindsey Graham look foolish. Recall his leading role in producing the “Gang of Eight” compromise that avoided the nuclear option as a means for Republicans to confirm all of President Bush’s court of appeals nominees. Graham self-righteously cast himself as the preserver of the Senate as a special deliberative body.

Whatever the merits of filibustering judicial nominees, it was obvious that the Democrats would end the practice as soon as they had both the power and the need to do so. Now they have.

Predictably, no bipartisan “Gang” stepped up to prevent this. Bipartisanship runs only one way in these matters.

Thanks to Graham, Democrats were able to use the filibuster to block nominees like Jim Haynes and Peter Keisler. If Graham hadn’t played the stooge, the Fourth Circuit would be more conservative today and, with fewer vacancies to fill on the D.C. Circuit, Obama would not be about to flip it his way.

I don’t call Lindsey Graham the Arlen Specter of the South for nothing. And Sen. Tim Scott hasn’t declined to endorse Graham for nothing, either.

UPDATE: Ed Whelan provides his take here. Bill Otis does so here.

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