6 Questions to Ponder About the Senate’s Nuclear Winter

From David Hawking at Roll Call:

5. Why didn’t Democrats eliminate filibusters on legislation?

There is nothing, procedurally, to prevent them from doing so. As Thursday’s developments show, changes in the Senate rules, which are supposed to be fully debatable and subject to a two-thirds-majority vote, can effectively be changed by a simple majority.

But there does not appear to be any move afoot by the Democrats to take the next logical step by ending the filibuster altogether. The main reason is that they would reap no benefit from dropping that second nuclear bomb. Because nominations aren’t handled by the House, the new rules give the Democrats uncheckable ability to give their president what he asks for. Not so with legislation, which of course has to be passed in identical form by both the House and Senate to become law. Democrats have nothing to gain by streamlining the system so their bills can get more quickly across the Capitol, because the current House GOP majority would still be likely to shelve the measures in opposition to the policy changes being proposed.

But, to drive the point home, Speaker John A. Boehner, R-Ohio, has declared that he House would not touch a bill, no matter its merits, if it had been passed by the Senate without having to run the current cloture-first gantlet.

6. Why the exception for Supreme Court nominees?

Democrats were willing to accept that someday a Republican Senate will be able to quickly fill lower-court vacancies with the super-conservative nominees from a GOP president. But they were unable to acquiesce in that same scenario for the highest court in the country — especially at a time when its ideological balance is on a knife’s edge, and when advocates for abortion rights and other liberal causes were expressing wariness of the risk.

The tradeoff is that, by preserving the filibuster as a tool to stop Supreme Court nominees, Reid has made it potentially significantly difficult for Obama to install a new justice for the rest of his presidency. Especially if an opening unexpectedly occurs soon, while the pain of nuclear winter is still palpable, Republicans would be very tempted to unite against anyone Obama might choose — even if that meant leaving one of the court’s nine seats empty for a time.

Of the two liberal anchors of the court, Ruth Bader Ginsburg would be 83 at the time of the next presidential election, and Stephen G. Breyer 78. Both Anthony M. Kennedy, the only genuine swing vote, and Antonin Scalia, the leader of the conservative bloc, will turn 80 in 2016.