Brian Beutler is one of the savviest political analysts in the country right now. For example, he (as did I) completely nailed how the government shutdown would go more than a month beforehand. When he writes something I haven’t thought of or that I disagree with, I take special notice. I respect his opinion.
In his piece today on the nuclear option, I believe he has given too much credit to the Senate Republicans for having a coherent plan. To characterize Beutler’s argument, he believes that the Republicans are self-aware about the fact that they’ve put Harry Reid in a position where he literally cannot back down, and so, therefore, they must want Harry Reid to go nuclear. The idea is that it is a high-stakes gamble on their ability to retake the Senate in the upcoming midterm elections. Why not entice the Democrats to do their dirty work for them by weakening the filibuster rule now so that the Republicans will have an easier time eliminating it altogether next year?
This idea had occurred to me. It’s the Brer Rabbit and the Tar Baby strategy that the president continuously employs to great advantage. You pretend to not to want something in order to get your opponents to do it. But, in this case, I don’t think the Republicans are being nearly that clever.
Let’s look at part of Beutler’s argument:
The turbulent rollout of the Affordable Care Act has exacerbated the vulnerabilities of several Senate Democrats. 2014 was always going to be a challenging election cycle for Democrats. But back in the summer, their position was strong enough that several Republicans defected to help Reid break the filibusters and fill key administrative vacancies. The stakes are admittedly higher now — federal judgeships are lifetime appointments. But this time around almost all of those Republicans have returned to the fold, including members like Sen. John McCain, R-Ariz, who just a few months ago were heralding a new era of advise and consent normalcy.
Perhaps these veteran Republicans changed and re-changed their minds about basic balance of power questions over the course of a few weeks, in the same way that Romneycare transubstantiated in their imaginations from a signal GOP accomplishment into a socialist rationing scheme on January 20, 2009.
I think it’s more likely that Republicans have caught Democrats at a moment of political weakness, and are offering them a Sophie’s choice between foregoing any filibuster reforms — a major devolution of power to the Senate minority — and priming the political system for a more dramatic rules change if they retake the Senate next year. Republicans are bug-eyed at Democrats’ current political misfortune. If the majority is their’s for the taking, as many of them suspect, why not get Harry Reid to do some of their dirty work for them. Then they can really escalate their assault on President Obama’s legacy.
This analysis has a lot of surface plausibility, but it assumes that the strategy to block the three DC Circuit judges is malleable. It assumes, for example, that the Republicans are capable of turning on a dime and changing their strategy if their perception of their chances for winning back the Senate dims somewhat. Perhaps, more accurately, Beutler’s analysis is predicated on the opposite assumption, which is that the decision to block the judges only came about because of a sudden burst of optimism spurred by the rocky rollout of the Affordable Care Act‘s federally-run exchanges.
One problem with this analysis is that the Republicans have been setting up the rationale for their obstruction for a very long time. They have long been arguing that the DC Circuit has been assigned more judgeships than it needs to do its work efficiently. They were making that argument in the spring, before the nominees for the circuit were announced on June 4th. In fact, in April, Sen. Chuck Grassley introduced a bill called the Court Efficiency Act to eliminate three seats on the DC Circuit.
What we can surmise from this is that the Republicans’ intention to block nominations to the DC Circuit is neither opportunistic nor is it malleable. During President Obama’s first term, the idea was that they might win the 2012 election, so delay would benefit them. But, they didn’t alter their strategy when they lost the 2012 election. Instead, they doubled-down on the idea that the court has too many assignments. They did so even before President Obama named his nominees in an obvious effort to lay the rhetorical groundwork for their obstruction.
Recently, Sen. Chuck Grassley took to the Senate floor to dare the Democrats to use the nuclear option:
Senator Charles E. Grassley, Republican of Iowa, who is a senior member of the Judiciary Committee, dared Democrats to change the rules, saying it would come back to haunt them if they lost the majority.
“Go ahead,” Mr. Grassley said. “There are a lot more Scalias and Thomases that we’d love to put on the bench,” referring to Justices Antonin Scalia and Clarence Thomas of the Supreme Court.
To be clear, Grassley’s dare is the opposite of the Brer Rabbit and the Tar Baby strategy. Using that strategy, Grassley would argue that using the nuclear option is the worst thing in the world and would beg the Democrats not to use it, all the while secretly hoping that they would. Yet, Grassley used the more straightforward approach of warning the Democrats of the real potential downside if they take action. The thing is, the Democrats need no reminding that turnaround can be a bitch. If Grassley is encouraging them to do something, it is probably because he doesn’t want them to do it.
A more likely analysis of this than Beutler’s is that the Republicans simply didn’t believe that the Democrats would ever eliminate the filibuster for judicial nominees because they are too vested in being able to obstruct choices that they do not like when they are in the minority. That has been true, historically, but the way the Republicans have framed this debate has forced their hand. Take a look at this:
Reid has concluded Senate Republicans have no plausible way of retreating from the position they’ve adopted in this latest Senate rules standoff, the aide says. Republicans have argued that in pushing nominations, Obama is “packing” the court, and have insisted that Obama is trying to tilt the court’s ideological balance in a Democratic direction — which is to say that the Republican objection isn’t to the nominees Obama has chosen, but to the fact that he’s trying to nominate anyone at all.
Reid believes that, having defined their position this way, Republicans have no plausible route out of the standoff other than total capitulation on the core principle they have articulated, which would be a “pretty dramatic reversal,” the aide continues.
“They’ve boxed themselves in — their position allows them no leeway,” the aide says, in characterizing Reid’s thinking. “This is not a trumped up argument about the qualification of a nominee. They are saying, `we don’t want any nominees.’”
I know that that Greg Sargent piece is designed as a threat that can be used to make the Republicans relent without the Democrats having to go through with the nuclear option, but the reasoning behind the argument is unassailable. Perhaps, without intending to, the Republicans have convinced Harry Reid that they cannot relent. And that leaves him no choice.
I think this is a simple matter of the Republicans overplaying their hand and underestimating their adversaries. They aren’t playing out a clever strategy; they are driven by ideological blindness.
Surely, they will take whatever advantages they can from whatever the Democrats do, but they aren’t secretly hoping that the Democrats will do their dirty work for them. The Courts are too important to their overall strategy for them to sacrifice their ability to obstruct as part of a larger, more devious plan.
