Judicial Nominations: Nuclear Retaliation Revisited

Showdown July in the Senate! With the possibility that Democrats will attempt majority-imposed reform should Republicans continue to block executive branch (and perhaps judicial) nominations, we’re getting a rehash of some of the old arguments surrounding it. So, here we go again: yes, Republicans have plenty of tools remaining to meaningfully “shut down” the Senate if Democrats go nuclear.

So when Ed Kilgore says (and Kevin Drum agrees) that “It’s not at all clear that if Democrats invoked the ‘nuclear trigger’ and Republicans went absolutely insane in retaliatory wrath, we’d even be able to tell the difference,” well, they’re just wrong.

I mean, first things first: a lot of judges are getting confirmed these days. 28 this year so far, which is almost all of those who made it through committee; in fact, they’re moving fairly quickly now from committee to the floor. Here’s a list, and that (as of when I write this) doesn’t include District Judge Jennifer Dorsey, who was confirmed in a 54-41 vote yesterday. Right now, the Democrats are apparently talking about just going nuclear on exec branch nominations; Republicans have plenty of ability to retaliate by shutting down judicial confirmations.

Beyond that…well, sure, there’s plenty of stuff they could do. Yes, it’s not going to matter much to ultimate legislative outcomes, since nothing is passing right now (although, still, a few things have passed, and others could pass still). But presumably the majority really does want to keep things moving, for whatever reasons; after all, they do bring bills to the floor. And, yes, Republicans could retaliate by making it next-to-impossible to do what little the Senate is doing.

All that said: my position on this has always been that while Republicans could retaliate, they probably won’t, at least not for long. If it’s currently not in their interest to delay everything, it’s hard to see how that changes after majority-imposed reform. Still, it certainly could make it harder to get marginal Republican votes in some cases, which could marginally hurt Democratic efforts to spin the blame for everything onto House Republicans; they also might be marginally less cooperative on judges, although that would presumably be balanced by Reid having a more believable threat if he says he’ll go nuclear on them, too.

For more on this, see Sarah Binder, me, and Sarah again, from back in May when reports first showed up about Showdown July.

[Cross-posted at A plain blog about politics]

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Jonathan Bernstein

Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.