I hate to break it to David Brooks, but the Senate couldn't get more partisan or polarized than it is already and as his cohort on The PBS Newshour, Mark Shields explained to him this Friday, the Democrats finally getting fed up to invoke the so-called "nuclear option" is a symptom and not the cause of the problem.
November 22, 2013

I hate to break it to David Brooks, but the Senate couldn't get more partisan or polarized than it is already and as his cohort on The PBS Newshour, Mark Shields explained to him this Friday, the Democrats finally getting fed up to invoke the so-called "nuclear option" is a symptom and not the cause of the problem.

And of course like a good deal of the other talking heads that are filling our airways these days, Brooks uses the Democrats finally being pushed to act by the bad faith of the Republicans as an excuse for more of their bad behavior in the future.

JUDY WOODRUFF: Let's talk about what happened yesterday in the Senate, the -- essentially changing the rules, Mark, to say that, to confirm a president's -- one of the president's nominees, it only takes a simple majority, no longer 60. They called it the nuclear option.

But were the Democrats justified in doing this?

MARK SHIELDS: Were they justified? I will leave that to a higher power to make that determination.

I think it became inevitable, Judy. There have been 168 filibusters on presidential nominees in the history of the Senate. Half of them have occurred in the last four-and-a-half years, under President Obama. So it had become a tactic that was just part and parcel, that changed the system and the rules in the Senate, that you required 60 votes to be confirmed.

And it reached the point where they weren't objecting to nominees on the basis of their qualifications or lack thereof. There was just a blanket opposition. And I think Democrats concluded, breaking their word from five years ago, when -- when they opposed this nuclear option -- but they concluded the Republicans, if they do win control of the Senate in 2014, which is probably a better-than-even bet, that they would do the same.

So, they would get -- that any chance of compromise was probably minimal, so why not get done what they could get done in the remaining time of President Obama's term?

JUDY WOODRUFF: So, David -- David -- and, by the way, I made a mistake. You're not in Philadelphia. You're in San Francisco.

JUDY WOODRUFF: I knew that.

But are you prepared to weigh in on whether the Democrats made a mistake here or not?

DAVID BROOKS: Yes, they made a big mistake.

There's -- Mark's right. There's no question there's been a deterioration of norms, but that's no reason to basically begin the erosion of the institution of the Senate, what makes the Senate special. When you go to the Senate dining room and you look at the senators, they actually do talk to each other across party lines. They have working relationships. It's not great. It's not the way it used to be.

But they basically have working relationships. And they were able to pass legislation, even immigration reform, a couple weeks or months ago, because they have to do that, because to get a lot of stuff passed, including nominations, you have got to get 60 votes. And it's very rare that one party has 60 votes. So, they're used to working across party lines, in a way they just aren't in the House.

And so, if you take away that 60-vote thing, starting now with some of the nominations, but probably going within a couple of years to the Supreme Court nominations and maybe the legislation, you basically are turning the Senate into the House. You're basically beginning the erosion of what makes the Senate special, beginning the erosion of minority rights.

You're creating a much more polarized body over the long term. So, if you think partisanship and polarization are in short supply, well, then this was a good move, because we're going to have more of it, I think, in the medium and long term.

JUDY WOODRUFF: Are these the kind of consequences you see?

MARK SHIELDS: David's -- David's analysis is, as always, interesting, but erosion of partisan -- of comity and good feelings is not beginning with this. This is not -- this is not a cause.

This is an effect of what has happened. I mean, this is a consequence of what has been going on. In running administration, Judy, personnel is policy. If you can't have your own people at a department or an agency, you can never -- you can never execute or be responsible for -- for the administration of justice and the law, which is your obligation.

Take the case of the Consumer Financial Protection Bureau. Because Republicans objected to the law, they refused to confirm Rich Cordray, first Elizabeth Warren, who is now a member of the United States Senate, who, as a consequence of their opposition, became a national folk hero, and finally Rich Cordray. And only with the threat of the nuclear option did they do it.

I mean, so it had reached a point -- it will be more partisan, no question about it. It will be more like the House. But I don't -- I think this was a -- this was one more step at a time when there wasn't that willingness that there was eight years ago for a gang of 14 to emerge and to say, we're going to break with our own party. Seven Democrats and seven Republicans, they did that on judicial nominees.

JUDY WOODRUFF: David, the Democrats argue that -- that the obstruction under this president is much worse than it was under his predecessors.

DAVID BROOKS: Well, I think, overall, that's true.

I think the final year of the Bush administration was pretty bad. I think that was equal to some of these years. I would say the most defensible thing that the -- part of this law is the White House personnel. I agree with Mark on that. The president really should have wide leeway to choose who he want. I can see sort of getting rid of the 60-vote thing for the administration personnel.

I find it much harder to defend the idea of getting rid of it for the judges. And, believe me, the Supreme Court judges, that will be -- that 60-vote thing will be gone in short order because of this.

In the first place, what you're going to get is much more polarized judges. Now you have to kind of pick a nominee who is going to get some votes from the other party. Once this rule is in place, you don't have to do that. Both parties are going to go to their bases and we will have a much more polarized judiciary than we have now as a part of this.

Then the final thing to be said, I agree with Mark, there's been a deterioration of norms, but the way to fix that is try to get people to behave better. We fix the norms. You don't want to break the fundamental structures and rules of the body. To me, that's basically giving up.

And so we're sort of sentencing ourselves to a long period of greater polarization and partisanship.

MARK SHIELDS: I think the -- historically, there has been a distinction made on presidential nominations, because a presidential appointment in the administration, at a Cabinet job or a sub-Cabinet job, is going to serve as long as that president.

The president has been given greater latitude. The Senate has been more likely to confirm. It's very, very rare that the Senate has opposed a presidential nominee for a Cabinet job, John Tower being one of the few, Lewis Strauss under President Eisenhower.

But judicial nominees have been historically different, that they have had to meet a different test, because they're there for a lifetime appointment, and they're going to be there long after the president who nominates them has left office. And so, I think, once you put the two of them together, I think you do -- you do accelerate and aggravate the partisanship...


JUDY WOODRUFF: What are the consequences, though, for policy? For ordinary Americans watching all this, David, what is going to change as a result of this?

DAVID BROOKS: Well, I think, in the short-term, the Republicans are going to do a little retaliation. And so they're probably not going to cooperate, maybe some of the budget stuff, maybe some of the agriculture bills, some of the water bills, some of that kind of stuff.

But on -- in the short term, we probably weren't going to see much passage of anything anyway. So, in the short term, you will just see -- it -- it underlines the fact that we're probably not going to have much legislation on anything. You had stuff going through the Senate before. It was dying in the House. Now it will probably die in both bodies.

I think what you will see in the long term, if my supposition is correct that we're going to go to a majority rule, a 50-vote rule on a to of things over the next couple years, is that you will see wider things in policy. One of the nice things about the American system is because we're a republic, and not a democracy, that we do protect majority rights, we made it hard to pass legislation.

So, we have a lot of stability in our policy across really decades, because it's just hard to pass stuff. But now it will be much easier to pass stuff, if it's only a 50-vote rule, and so Republicans will swing policy this way, Democrats will swing it that way. And so we will probably see wider policy swings, and probably more instability.

JUDY WOODRUFF: Is that what people are going to see?

MARK SHIELDS: I think that -- I think there's a good chance of that.

Just take, for example, Judy, the historic Civil Rights Act of 1964. They had a real filibuster, 504 hours of Senate argument and debate over a four-month period. And it finally passed 71-29. And they invoked cloture. They ended the filibuster. And on that vote, there were 23 Democrats who opposed ending the filibuster who were opposed to civil rights, and six Republicans.

It's reached the point now where when you -- I don't care who the nominee is. The Republicans were all against the nominee simply because a Democratic had done so. I think the implications will be, in addition to what David suggests, I think there will be -- they are felt in people's lives -- as long as the court of appeals in Washington, D.C., cannot make decisions, and they can't if the Republicans -- in the Republican system, had refused to approve, confirm another judge, then all the questions about civil rights, and gay rights, and workers' rights that come before that court, because that's where all of the regulations and laws are appealed.

In addition to that, don't forget this: campaign finance. I mean, judges have changed the way we finance our campaigns. And it is abysmal. And anybody who doesn't think that touches their lives...


JUDY WOODRUFF: And that's coming from the Supreme Court.

MARK SHIELDS: And that's coming from the Supreme Court.


MARK SHIELDS: But it -- so I just think -- I think that these decisions do touch people's live, just not directly in the way they might be keenly aware of on a daily basis.

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