Sarah Binder wrote last night about the new threats that Harry Reid is making to go nuclear. The first thing you need to know is that if you're at all interested in the filibuster, you need to read everything that Sarah writes. Especially if you read me on it -- if we differ, remember that I'm just a consumer of Congress research: she produces it.
To begin with, she emphasizes that the mechanism for majority-imposed reform is far more blunt and uncertain than I (and some others) tend to describe it. That's important.
Sarah also argues, also on something that I didn't take into consideration in my posts on this last week: "Republicans can credibly threaten to retaliate procedurally if the Democrats go nuclear. And that might be a far more credible threat than Reid’s."
I have two reactions to this.
The first is that a lot of liberals will read dismiss it, claiming that Republicans are already maximizing obstruction. That is incorrect. Only one judicial nomination has been defeated by filibuster during the current Congress; there are also a handful of other judicial and executive branch nominations which probably have not been brought to the floor because Reid doesn't have 60. On the other hand, there's a long list of nominations that the Senate has confirmed so far this year. There's also one judicial selection who withdrew after "blue slip" obstruction, but that speaks to Sarah's point: Republicans could make more trouble in other ways than they currently do.
Republican obstruction on nominations is unprecedented and, in my view, unjustified. They have invented a 60 vote threshold for virtually all nominations which never existed before 2009. But it is certainly not universal obstruction. It could be much worse under the current rules.
On the other hand...
I'm very hesitant to disagree with Sarah, but I really don't think much of the retaliation threat. It makes sense to threaten to shut down the Senate, but after majority-imposed reform is imposed, does it makes sense to carry out that threat? I don't think so -- because if it was in the GOP's interest to shut down the Senate, they would be doing it now. In other words, I don't think Republican Senators hold off on more extreme obstruction now because they're nice; I think they do it because they believe it's in their interest. And once they're faced with a new status quo, it would turn out that more less the same incentives apply.
Indeed, we've seen this before. Republicans threatened retaliation if Barack Obama used a recess appointment despite the House-forced pro forma sessions during a Senate recess, but when Obama acted the threat of retaliation turned out to be a dud. That doesn't prove that retaliation wouldn't happen this time, but as I said, I'm just skeptical about it. I'm sure there would be a lot of shouting, and there's a good chance there would be some demonstration of something on the Senate floor, but after a few weeks I suspect it would fizzle out. Now, to be fair, one could go back to that quote I'm so fond of from Maltese Falcon about how in the heat of the moment people don't always act in their own best interests. Given that, and just generally, I'd expect managers of the immigration bill to want to get that done before a filibuster battle begins.
But overall, I continue to think that the threat of massive retaliation if the Democrats go nuclear -- the threat that Republicans could respond by "shutting down" the Senate -- is a relatively minor factor in the chess game. Still: read Sarah's post in full; while I haven't been convinced, there's every possibility that she's right and I'm wrong on this one.