‘Nu­clear op­tion’ looks much dif­fer­ent to sen­a­tors af­ter 4 years, power shift


When Sen. Jeff Merkley ar­rived in Congress in 2009, one of his first cru­sades was to cur­tail the power of the fil­i­buster, which he thought was halt­ing much of Democrats’ wish list un­der Pres­i­dent Obama.

Af­ter four years of work­ing over his party lead­ers, Mr. Merkley got his way. Sen. Harry Reid, the Demo­cratic floor leader, trig­gered the “nu­clear op­tion,” a short­cut to change the rules and re­duce the power of the fil­i­buster for all nom­i­nees save for the Supreme Court. At the time, Mr. Merkley called it a vic­tory for democ­racy.

Fast-for­ward to this year and Mr. Merkley is again on a cru­sade — this time to save the fil­i­buster from Repub­li­cans, who are look­ing to fin­ish what Democrats started and evis­cer­ate the 60-vote block­ade of Supreme Court nom­i­nees.

The Ore­gon Demo­crat is by no means the only mem­ber of the Se­nate to change his po­si­tion based on whether he was in the ma­jor­ity, where the fil­i­buster is a nui­sance, or the mi­nor­ity, where it is a trea­sured right.

Repub­li­cans, who pon­dered the nu­clear op­tion a decade ago and op­posed it in 2013, are now push­ing it.

And Democrats like Mr. Merkley, who four years ago thun­dered about the in­jus­tice of fil­i­busters, are now beg­ging for the tool to be pre­served.

“When you look at how this is go­ing to re­ver­ber­ate for the decades to come, it is re­ally bad news for the Se­nate and it is ter­ri­ble news for the courts,” Mr. Merkley told re­porters as he left the Se­nate cham­ber af­ter hold­ing the floor for 15 hours in a mock fil­i­buster.

The lat­est fight is over Judge Neil Gor­such, who is Pres­i­dent Trump’s first nom­i­nee to the Supreme Court. Judge Gor­such has been des­ig­nated to fill the seat of the late Justice An­tonin Scalia.

Repub­li­cans say he is the per­fect can­di­date, with tremen­dous le­gal cre­den­tials and a stel­lar ca­reer on the 10th U.S. Cir­cuit Court of Ap­peals, where he estab­lished a record of agree­ment and care­ful schol­ar­ship.

Democrats have myr­iad ob­jec­tions. They fear he would over­turn prece­dent es­tab­lish­ing a right to abor­tion and prece­dent guar­an­tee­ing First Amend­ment po­lit­i­cal free speech rights while pro­tect­ing cor­po­rate plain­tiffs, and they say he would roll back estab­lished pow­ers of the fed­eral bu­reau­cracy.

Some Democrats also say the en­tire nom­i­na­tion is tainted be­cause it was made from a list Mr. Trump re­leased dur­ing the elec­tion cam­paign, as­sem­bled with help from the con­ser­va­tive Fed­er­al­ist So­ci­ety. Mr. Trump, they con­tend, shouldn’t be al­lowed to name a nom­i­nee while his cam­paign is un­der FBI in­ves­ti­ga­tion, and Judge Gor­such is a fair sac­ri­fice af­ter Repub­li­cans blocked con­sid­er­a­tion last year of Pres­i­dent Obama’s nom­i­nee, Judge Mer­rick Gar­land.

“We Democrats have prin­ci­pled rea­sons to vote against this nom­i­nee,” Se­nate Mi­nor­ity Leader Charles E. Schumer said. “We Democrats be­lieve the an­swer isn’t to change the rules; it’s to change the nom­i­nee.”

Mr. Schumer ac­knowl­edged that both sides have rea­sons to blame each other for start­ing, or deep­en­ing, the rifts.

Some an­a­lysts trace the bat­tles back to the 1980s, when Democrats voted not to con­firm a con­ser­va­tive le­gal su­per­star, Judge Robert Bork, to the Supreme Court. Af­ter a two-decade lull, Democrats launched par­ti­san fil­i­busters of Pres­i­dent Ge­orge W. Bush’s ap­peals court nom­i­nees, be­gin­ning in 2003 with a re­spected His­panic lawyer, Miguel Estrada.

They fol­lowed with fil­i­busters of five other Bush ju­di­cial picks that year and added four other fil­i­busters in 2004.

A year later, Repub­li­cans were poised to use the nu­clear op­tion and were de­railed only af­ter the so-called Gang of 14 sen­a­tors — seven Repub­li­cans and seven Democrats — struck a com­pro­mise. Democrats agreed to ap­prove most of the blocked judges in ex­change for a prom­ise from the Repub­li­cans not to sup­port their party lead­ers’ plans to change the rules.

That truce held un­til 2011, when par­ti­san power had shifted and Pres­i­dent Obama was pick­ing the judges. Repub­li­cans launched their first fil­i­buster of an ap­peals court judge.

By 2013, Democrats said the ob­struc­tion was out of con­trol and they looked to the nu­clear op­tion.

All told, some 40 Democrats who backed the nu­clear op­tion in 2013 are now poised to ig­nite an­other cri­sis by vot­ing against Judge Gor­such. Mean­while, 38 Repub­li­cans who voted against the nu­clear op­tion in 2013 are ready to trig­ger it.

One se­na­tor who is main­tain­ing con­sis­tency is Sen. Joe Manchin III, a West Vir­ginia Demo­crat who voted against his party’s use of the nu­clear op­tion in 2013 and is ex­pected to vote against Repub­li­can use of the tac­tic.

Mr. Manchin is sup­port­ing Judge Gor­such’s nom­i­na­tion, say­ing he is more than qual­i­fied for the Supreme Court.

“He has been con­sis­tently rated as a well-qual­i­fied jurist, the high­est rat­ing a jurist can re­ceive, and I have found him to be an hon­est and thought­ful man,” the se­na­tor said.

The de­ci­sion is strain­ing some long­time law­mak­ers, in­clud­ing Sen. John McCain, an Ari­zona Repub­li­can who was part of the Gang of 14. He was also in­stru­men­tal in de­lay­ing the nu­clear op­tion early in 2013, though ne­go­ti­a­tions even­tu­ally broke down and Democrats did pull the trig­ger, re­duc­ing the fil­i­buster for ex­ec­u­tive branch of­fi­cials and lower-court nom­i­nees.

Mr. McCain said he warned Democrats at the time that the roles would be re­versed some­day and Repub­li­cans would use the nu­clear op­tion for Supreme Court nom­i­nees.

His frus­tra­tion was ev­i­dent this week as he lashed out at both sides, say­ing the Se­nate he has served in for 30 years has been “ir­repara­bly dam­aged” by the fights. He called those ea­ger to trig­ger the nu­clear op­tion “id­iots.”

Mr. McCain warned that the rules changes will push the fed­eral courts more to the ex­tremes on both the right and left and said the coun­try is worse off for it. He called the sit­u­a­tion heart­break­ing but said he would join fel­low Repub­li­cans in com­plet­ing what Democrats started in 2013.


Sen. Jeff Merkley, Ore­gon Demo­crat, ended a 15 hour talkathon Wed­nes­day as the Se­nate headed to­ward a show­down over the con­fir­ma­tion vote for Supreme Court justice nom­i­nee Neil Gor­such.

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