The United States Senate is grinding to a halt. With 145 presidential nominees stuck in a state of political limbo, the chamber’s Majority Whip, John Barrasso, has threatened to detonate the “nuclear option” – unilaterally changing the Senate’s rules to “roll over” the Democratic minority and force the confirmations through.
This is not a story about one party’s obstruction or another’s frustration. It is a story about the complete and utter breakdown of the Senate’s institutional norms.
It is the predictable and tragic result of a decade of bipartisan escalation that has transformed the world’s “greatest deliberative body” into a chamber of raw, 51-vote power plays.
A Vicious Cycle of Retaliation
To understand the current crisis, we must be honest about its history. This is a constitutional crisis of the Senate’s own making. The “nuclear option” – a procedural move that allows the majority party to lower the threshold for ending a filibuster from 60 votes to a simple majority – is a weapon that both parties have eagerly used when in power.
In 2013, it was Senate Democrats under Harry Reid who first went “nuclear,” eliminating the 60-vote threshold for lower court and executive branch nominees.
In 2017, it was Senate Republicans under Mitch McConnell who retaliated, extending that new precedent to Supreme Court nominees. Senator Barrasso’s current threat is not a new idea; it is the next logical, and destructive, step in a cycle of mutually assured institutional destruction.
The Constitutional Role of “Advice and Consent”
This battle is over one of the Senate’s most fundamental constitutional duties. Article II, Section 2 requires that the President’s appointments of key officials be made with the “Advice and Consent of the Senate.”
The filibuster, while a controversial and often frustrating tradition, has historically forced the Senate to live up to this standard. It required presidents to seek consensus and to nominate individuals who could command at least some bipartisan support.
The repeated use of the “nuclear option” has gutted this deliberative function, transforming “Advice and Consent” into a simple test of which party holds a bare majority.
The Empty Threat of a Recess Appointment?
The administration has also floated another way to bypass the Senate: making “recess appointments.” This is a power granted to the President in Article II to temporarily fill vacancies when the Senate is in recess.
However, this is not the constitutional “get out of jail free” card it may seem. In the 2014 landmark case NLRB v. Noel Canning, a unanimous Supreme Court placed significant restrictions on this power, ruling that the President cannot declare the Senate to be in recess when it is, in fact, still holding pro-forma sessions.
The President’s threat to use recess appointments is not as simple as it sounds and would likely trigger its own major constitutional court battle.
This standoff is a tragedy for our constitutional system. The Senate was designed by the framers to be the one place in our government where deliberation and the rights of the minority were protected, acting as a “cooling saucer” to the passions of the moment.
Each use of the “nuclear option” is an act of institutional self-harm, sacrificing the long-term stability and the principle of consensus for a short-term political victory. This is not a story of one party’s obstruction, but a story of a great constitutional body slowly dismantling itself from within.