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Senate averts 'nuclear option,' but leaves deeper questions unanswered

After a rare, closed meeting senators agreed to confirm several controversial Obama nominees. The deal avoided a 'nuclear option' that would have changed Senate rules on filibusters.

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The outcome of this Senate debate harked back to 2005, when a "Gang of 14" including Senator McCain, stopped a GOP move to change the rules on judicial nominations because of Democratic filibusters. And Sen. Lamar Alexander (R) of Tennessee reminded Democrats that the cycles of Senate power mean a decision to change Senate rules now could backfire in the future.

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"It might be a Democratic train going through the Senate one year, but a year and a half from now it might be the tea party express, and some of them might not like that," says Senator Alexander, a leading Senate voice for compromise who worked on the bipartisan pact. "It means we will lurch back and forth, from one extreme to the other."

A nuclear end-run by Reid would also have enraged Republicans so much that bipartisan accord on legislation or judges would have been difficult, if not impossible.

"I don't see how using the nuclear option could do anything but – this is hard for the American people to believe – make the gridlock worse,” said Sen. Carl Levin (D) of Michigan, who says that he would have voted against Reid’s proposed rules change, at a breakfast with reporters sponsored by the Monitor Tuesday.

For some long-time advocates of changing Senate rules, however, the deal represented a missed opportunity.

Allowing executive nominees to be confirmed with a bare majority of the Senate "would be liberating!" Sen. Tom Harkin (D) of Iowa says he told his colleagues on Monday night. "I said, for example, 'What do Republicans have to fear?' [Obama is in office] for three years more, he's already got his [cabinet] filled, the next president might be a Republican, and they’ve got clear sailing!… The best thing would be for all of us to lock hands and put this thing behind us."

"Every time you paper it over, it gets worse," Senator Harkin says, referring the Senate’s often halting operations. "You'll smooth it for a while and then it will just keep getting worse."

And the deal didn't touch two other significant points of contention in the Senate – filibusters on Obama’s judicial nominees and on legislation – that will almost certainly flare again in the future. The Senate is set to take up a trio of judges to the D.C. Circuit Court in the weeks to come, and Republicans oppose adding judges to what’s often referred to as the second-highest court in the land. Democrats, of course, want Obama’s nominees confirmed post-haste.

“This was a stopgap,” said Carl Tobias, a law professor at the University of Richmond, in an e-mail. “The bigger issues remain, such as judicial filibusters, [where] Senate dysfunction is harming the Third Branch.”


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