Commentary Magazine


Hypocritical Dems Think They’ll Always Rule

Today, Majority Leader Harry Reid took the first steps toward altering the nature of the Senate. Reid and his Democratic caucus intend to alter the rules so as to prevent filibusters of cabinet appointees and nominees to the federal bench save for the U.S. Supreme Court. Having come this far it is assumed that Reid finally has amassed enough votes to ram through changes in the upper body’s time-honored rules and allow President Obama to pack the Court of Appeals with as many liberals as he likes. He claims they are acting in the name of civility and the need to keep the government working, but there should be no doubt that what is going on here is a hypocritical grab for power that should be stopped.

That was, after all, the opinion of the New York Times editorial page on March 6, 2005 when Senate Republicans first mooted what we now call the “nuclear option” in order to stop Democrats from filibustering President George W. Bush’s judicial nominees. Going back to that piece would make for instructive reading for self-righteous liberals today who claim that what Republicans have done in blocking liberal judicial nominees is unprecedented. This is what the Times had to say in response to Republican frustrations about the Democratic minority in the Senate using the rules to obstruct the appointment of conservatives to the bench:

The Republicans are claiming that 51 votes should be enough to win confirmation of the White House’s judicial nominees. This flies in the face of Senate history. Republicans and Democrats should tone down their rhetoric, then sit down and negotiate.

To block the nominees, the Democrats’ weapon of choice has been the filibuster, a time-honored Senate procedure that prevents a bare majority of senators from running roughshod. Republican leaders now claim that judicial nominees are entitled to an up-or-down vote. This is rank hypocrisy. When the tables were turned, Republicans filibustered President Bill Clinton’s choice for surgeon general, forcing him to choose another. And Bill Frist, the Senate majority leader, who now finds judicial filibusters so offensive, himself joined one against Richard Paez, a Clinton appeals court nominee.

The Senate does much of its work by unanimous consent, which keeps things moving along and prevents ordinary day-to-day business from drowning in procedural votes. But if Republicans change the filibuster rules, Democrats could respond by ignoring the tradition of unanimous consent and making it difficult if not impossible to get anything done. Arlen Specter, the Pennsylvania Republican who is chairman of the Judiciary Committee, has warned that “the Senate will be in turmoil and the Judiciary Committee will be hell.”

There is one way to avert a showdown. The White House should meet with Senate leaders of both parties and come up with a list of nominees who will not be filibustered. This means that Mr. Bush – like Presidents Bill Clinton, Ronald Reagan and George H. W. Bush before him – would agree to submit nominees from the broad mainstream of legal thought, with a commitment to judging cases, not promoting a political agenda.

Of course, once Democrats won back the Senate in 2006, the Times changed its tune and hypocritically denounced filibusters as a threat to democracy. But that’s whole problem with Reid’s decision. As I wrote back in July, Reid’s plan was to stage a series of votes on liberal nominees that he knew could not inspire bipartisan support. That has given him the ability to rally his caucus behind the move to end filibusters on all but Supreme Court appointments. But, as the Times pointed out in 2005, what the Republicans are doing now is no different from what both parties have done in the past.

It is true that the use of the filibuster has expanded in recent decades and that has not always been for the good of the country. But the filibuster rules exist to prevent narrow Senate majorities from ramming through any legislation or appointment they like without listening to the opinions of the minority. Having to do that can be infuriating for presidents and Senate majorities but such consensus is, as perhaps President Obama should have learned from his health-care debacle, useful and even necessary for making government work effectively. The Founders didn’t create the Senate to rubber stamp the desires of presidents and majorities but to act as a check on their impulses. If President Obama and Reid want to get more judges confirmed, they can do as their predecessors have done and try to work with the other party rather than just maneuver to impose their ideological agenda on the country. Despite the apocalyptic rhetoric of Democrats, Republicans have allowed more than 200 of the president’s judicial nominees to be confirmed. That’s why the fight Reid has staged on the filibuster is a ruse designed to justify a naked putsch for total power.

Democrats should pull back from the brink for the same reason both parties have refrained from going nuclear: no majority lasts forever. A few years ago the GOP was inveighing against filibusters and Democrats spoke up for the rights of the minority. Today, the tables are turned. But though the president and Reid are acting as if their party will rule forever, it won’t. As Chris Cilizza points out in the Washington Post today, a lot of the current members of the Senate weren’t there in 2006, the last time Democrats were in the minority. But whether it is in 2015 or 2017 or another year, Republicans will win back the Senate some day. At that point, Democrats will once again discover the virtues of the filibuster. But, if Reid’s rule changes go through, they will rue the day they blew up the Senate.

Rather than making the government work better, as the Times predicted back in 2005, the nuclear option will only make political battles in Washington nastier and more divisive. Power grabs may work in the short run but those who try such gambits usually learn that the American political system encourages moderation and checks and balances. As such, Reid may get a taste of his own medicine sooner rather than later.

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