There's been a fair bit of back and forth, even a little of it on dailykos, on whether Harry Reid has been hypocritical in exercising the nuclear option, when he spoke so forcefully against it when Republicans threatened to use it for a batch of Bush's appellate court nominees.
I would submit that there is no hypocrisy involved, and not merely because (as the simple numbers so clearly show) Republican obstruction has been far more extensive. Rather, what just took place did not in my view involve a nuclear option at all.
I explain myself below the ormolu loop de loop.
There is no disagreement anywhere that the Senate can set whatever rules it likes at the beginning of a session, with a simple 51 vote majority. A majority-vote rules change constitutes the "nuclear option" only in mid-session.
At the beginning of this session, Reid was proposing to conduct business under a rule with no filibusters for executive branch appointees. McConnell entered into an agreement that prevented a vote on that rules change, in exchange for an assurance that "he two leaders will continue to work together to schedule votes on nominees in a timely manner by unanimous consent, except in extraordinary circumstances."
In strict parliamentary terms, of course, that pledge was not part of the rules laid out at the start of the session. But in moral terms, the only terms which matter in assessing a charge of hypocrisy, it was. And that pledge has been broken, re-broken, shamelessly violated in its every orifice. Worse, the GOP's topsy turvey position on judgships has become the claim that the mere act of a Democratic president putting forward a nomination for a vacancy constitutes an "extraordinary circumstance." In moral terms, therefore, the Senate has reverted to its condition prior to the agreement. That condition was one in which a rules change required only a majority vote to prevail - and Senator Reid was quite clear at the time that he would reserve that right should the pact be abrogated. That right was part of the original understanding.
The agreement arose in response to a rules proposal concerning only executive confirmation votes. One might argue that McConnell's bad faith only entitles Reid to eliminating filibusters mid-session for that particular case. One might so argue, had the GOP not declared its intent, against all precedent and against its clear constitutional duty of advice and consent, to block any Democratic judge, no matter who. But it makes just as much sense to acknowledge that, by reneging on their pledge, they have banished Democrats back into Eden, the Eden of January 2013, when the Senate rules lay entirely at their disposal.
Today's vote completes the Senate's interrupted first day of the session. Woe betide them, or at least the charge stick to them of a hypocrisy somewhere within astronomical striking distance of McConnell's, if later in the session they return to alter the filibuster for legislative votes.
But today they remain unstained. Or perhaps the correct word here is radiant.