“Nuclear Option” Ensures Trump’s Legacy

Apr. 5, 2019
by Bob Adelmann

Using a tool crafted by then-Senate Majority Leader Harry Reid in 2013, Senate Majority Leader Mitch McConnell is working to ensure Donald Trump’s legacy. With 130 judicial and executive appointments waiting for Senate confirmation, McConnell gave up on the Senate Democrats’ intransigence and obstruction and pulled the pin on Wednesday.

Senate Minority Leader Chuck Schumer was not happy:

This is a very sad day for the Senate. The majority, by taking yet another step to erode [its] legacy, risks turning this body into a colosseum of zero-sum infighting, a place where the brute power of the majority ultimately rules.

McConnell charged:

He started this whole thing. This is not a sad day. This is a glad day. This is a day we end this completely outrageous level of interference and obstruction with this administration….

It’s time for this sorry chapter to end. It’s time to return this body to a more normal and reasonable process for fulfilling its constitutional responsibilities no matter which party controls the White House. This [obstruction by Democrats] is new. And it needs to stop.

In reality it was former Senate Majority Leader Harry Reid (D-Nev.) who “started the whole thing” back in 2013. With the Senate then in Democrat hands Republicans used the filibuster to delay confirmation of three appointees by President Obama to the U.S. Court of Appeals for the District of Columbia. At that moment in time, there were 59 executive branch nominees and 17 judicial nominees waiting in the queue for Senate confirmation.

In 2017, McConnell invoked the nuclear option to kill the 60-vote requirement still remaining on Supreme Court nominees. This ended debate over the nomination of Neil Gorsuch to the high court and allowed the Senate to confirm it.

The Constitution left the question open. It addresses the process of confirmation in two places: Article I, Section V, and Article II, Section 2, paragraph 2. The first permits each house of Congress to establish its own rules; the second provides that “the President … shall nominate … by and with the Advice and Consent of the Senate … Judges of the Supreme Court and all other Officers of the United States.” Nothing was said about how many Senators needed to give their consent. It was left up to the Senate to determine the rules.


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The history of confirmation is checkered but remained relatively limited until 2103. When Reid invoked the nuclear option he opened the door for McConnell. That’s one of the reasons that Senator Mike Lee (R-Utah) voted against it: “I worry that we might be accelerating our march towards [more dramatic changes]. One reason they call this the nuclear option is once it’s set in motion, it can be difficult to control.”

Under the new rule, confirmation of appointees requires a simple majority instead of three-fifths before McConnell invoked the nuclear option. With more than 130 Trump appointees waiting in line, McConnell – who has made no secret of his desire to get as many of them confirmed as rapidly as possible – hopes to empty the pipeline before the 2020 elections.

The “nuclear option” all but ensures President Donald Trump’s legacy in shaping the judicial landscape of the American republic for decades to come. While most are focusing attention on the health of aging left-liberal Supreme Court Justice Ruth Bader Ginsburg (she turned 86 in March) and Trump’s plans to nominate U.S. Circuit Judge Amy Barrett (age 47) to replace her, the Supreme Court takes under review very few cases. Most of the heavy lifting, and the welcome restoration of original intent of the Founders, takes place in lower courts.

What’s especially ironic is that the tool McConnell used on Wednesday to accelerate those confirmation hearings was given to him by the Democrats. Even if the Democrats take the White House in 2020 (increasingly unlikely thanks to the antics of aliens like AOC), there is little they will be able to do to neuter Trump’s legacy.

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An Ivy League graduate and former investment advisor, Bob is a regular contributor to The New American primarily on economics and politics. He can be reached at badelmann@thenewamerican.com.

Sources:

Politico: Republicans trigger ‘nuclear option’ to speed Trump nominees

Wall Street Journal: Senate GOP Invokes 'Nuclear Option' to Change Rules by Simple Majority

Background on the Nuclear Option

Background on U.S. Circuit Judge Amy Barrett

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