Thinking Out Loud: The Constitutional “Fallout” of the Nuclear Option

Recently Senate Majority Leader Harry Reid and his Democratic colleagues in the Senate invoked what has been called “the nuclear option” — ending the age-old filibuster rule that required 60 Senate votes before a president’s judicial nominees could move forward in the nomination process.  The vote to end this rule was 52–48; three Democrats joined all 45 Republicans in opposing this change, which is a blatant violation of a longstanding rule of the Senate that a two-thirds vote — a “supermajority” — is required before the Senate’s rules can be changed.  A 52–48 vote is bare majority, not a supermajority.

Still, leave aside this violation of both senatorial procedure and tradition.  The key issue here is the change in our governmental architecture.  The Founders always intended the Senate to be the legislative branch’s more deliberative body, while the House, with frequent (two-year) elections was to be the body closest to, and most beholden to, “the people,” and therefore most responsive to the popular will when crafting legislation.

By contrast the Senate was supposed to consider whether that House-crafted legislation also reflected what was good for the body politic as a whole, especially since the popular will was often guided by passion rather than reason.

The popular will is also, by definition, the will of the majority of the people; it is “popular” because most people — a majority — like it.  But as the Founders discovered, when a majority likes something, it will often use its superior numbers — and the power derived from those numbers — to ride roughshod over the rights of minorities to obtain that something.  The Founders called it “tyranny of the majority” and preventing that tyranny from violating the rights of minorities was another reason the Senate was given political cover — six-year terms, for example — so that it can make decisions in defiance of those majority passions and preferences.

That same theory applied to the Senate’s “supermajority” rule.  It was a protection given to the minority, in this case the Senate Republicans, to ensure that the majority, today’s Democrats, didn’t ride roughshod over their minority right to influence the Senate’s business in ways that served their constituents.  In this case, those constituents, having voted Republican, probably don’t want to see President Obama’s liberal judicial appointees approved by a simple majority vote.

Granted, in 2005, when the Republicans controlled the Senate, they considered the same nuclear option for the same reason, but they were chastened by a Senate Democrat, who said of the supermajority rule, “It’s not some procedural gimmick. It’s within the vision of the Founding Fathers. They established a government so that no one person — and no single party — could have total control.”

That Senate Democrat was Harry Reid.