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‘Nuclear’ fallout in Senate might take some time to register

Democrats show no immediate signs they are contemplating retaliation

Sen. Joe Manchin, D-W. Va., decried the erosion of senators’ influence and ability to serve as advocates for their states in the latest move to alter the rules of Senate debate. (Bill Clark/CQ Roll Call file photo)
Sen. Joe Manchin, D-W. Va., decried the erosion of senators’ influence and ability to serve as advocates for their states in the latest move to alter the rules of Senate debate. (Bill Clark/CQ Roll Call file photo)

The Senate’s Geiger counters hardly registered Wednesday afternoon after the most recent deployments of the “nuclear option” to speed up confirmation of President Donald Trump’s nominees, although the long-term effects on the institution may very well be significant. 

The first nominee considered, Jeffrey Kessler to be an assistant secretary of Commerce, was ultimately confirmed by voice vote after the two hours of post-cloture debate allowed under the new process was declared expired.

And there was no real effort by the Democratic minority at dilatory motions: They didn’t demand meaningless quorum calls or other procedural votes.

Much of the floor debate focused on the exchanging of blame over Senate obstruction rather than any long-lasting consequences for the body of the latest moves, though West Virginia Democrat Joe Manchin III did channel his late predecessor, Sen. Robert C. Byrd.

“So much of our influence as senators comes from our power to filibuster. It is also the most powerful tool that we have to force compromise and to stand up for the people that we represent,” Manchin said in a floor speech. “This rule today, this change, and the two that came before it in 2013 and 2017, were not meant to make this place more efficient. They were meant to take power from each and every senator.”

From the archives: What’s the nuclear option? Dismantling this Senate jargon

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Old wounds

Manchin was one of the three members of the Democratic Conference to go against Majority Leader Harry Reid on the November 2013 nuclear option vote that reduced the threshold to break filibusters of most nominees to a simple majority. He is the only one of that trio still in office.

Back when the 2013 standoff happened, Reid responded to GOP retaliation tactics by forcing continuous session, but there appeared to be no appetite for that Wednesday evening.

Senate Majority Leader Mitch McConnell actually got consent to hold over a vote on a judicial nomination until late Thursday morning, avoiding interference with senators’ evening plans.

In a lengthy floor speech before the first of the two votes Wednesday to overturn the ruling of the chair and set new debate time limits, Minority Leader Charles E. Schumer made his case that Republicans were largely to blame for the current predicament.

He and other Democrats invoked the name of federal appeals court judge Merrick Garland, President Barack Obama’s Supreme Court nominee whom McConnell declined to consider.

“It’s actually a little surprising that Leader McConnell and his Republican colleagues would draw attention to the subject of executive nominees now, given the appalling history of incompetence, corruption and venality among President Trump’s so-called best people. Not to mention the fact that there are hundreds of vacancies the president can’t even be bothered to fill,” Schumer said. “Staffing the government is serious business.  And so is the system of justice assigned to our courts by the Constitution.”

McConnell followed with a floor speech in which he often turned directly to the Democratic side, recalling the story of Miguel Estrada, the 2001 George W. Bush nominee to the U.S. Court of Appeals for the District of Columbia Circuit, who would ultimately face seven failed cloture votes.

In a sign that no debate ever ends, McConnell highlighted Schumer’s role in those filibusters.

But aside from the speeches, the votes themselves went about according to the script. Republican Sens. Susan Collins of Maine and Mike Lee of Utah joined the Democrats to oppose separate efforts by McConnell to reduce from a maximum of 30 hours to two hours the post-cloture debate time for sub-Cabinet nominees and lower-level federal judges.

Each of the nuclear option procedural votes on overturning the parliamentary rules prevailed 48-51, with the “no” vote representing the change in precedent. California Democrat Kamala Harris, who is running for president in 2020, was the lone absent senator.

Will legislation be next?

The next logical steps in the Senate’s move toward a more majoritarian posture might be to reduce the debate time for Cabinet nominees and federal appeals court judges. But the obvious question is when — and if — the legislative filibuster might come under siege.

McConnell has said previously that the current 60-vote rule for legislative business will not be changing, despite pressure from Trump.

Even a Republican senator who has advocated eliminating the legislative filibuster to fund building the wall at the border with Mexico expects no imminent changes.

“What we’re debating here are rules that were never part of the Constitution. The Senate gets to define the rules, and the Senate can change its rules,” Montana Sen. Steve Daines said Wednesday. “It is a good healthy debate, and I don’t think you’re going to see a legislative filibuster change in this Congress. I don’t think you’ll see that as long as Republicans have control of the Senate.”

“I support it actually, but I think if the Democrats did get control of the Senate, it might be a different story,” Daines said.

Given the pressure that Democratic senators in particular are facing from outside groups, it may be difficult for the current filibuster rule to survive a future unified government.

Senate Appropriations Chairman Richard C. Shelby was asked if he could foresee a future in which senators do not have the right to filibuster legislation.

“The question is where does it stop, and that’s your question? It might not stop,” the Alabama Republican said.