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The Nuclear Option and the Fallout to Come

The Nuclear Option and the Fallout to Come

By Carl M. Cannon - November 24, 2013

Among Nevadans of a certain age, especially those with experience in the boxing ring, Harry Reid has a dubious reputation: He was known as a fighter who’d throw a quick punch after the bell.

“I would rather dance than fight,” he likes to say, “but I know how to fight.” That’s an understatement. Since he’s been in the Senate, he’s left a string of partisan little stink bombs trailing him around Capitol Hill.

He accused Senate Majority Leader Bill Frist of being “amateurish,” called Alan Greenspan one of Washington’s “biggest political hacks,” dubbed President Bush “a loser,” Clarence Thomas “an embarrassment to the Supreme Court,” and says he “can’t stand” John McCain. Reid claimed on the basis of an anonymous call that Mitt Romney didn’t pay any taxes. This he said on the Senate floor.

“I think what we really need is an anti-bullying ordinance in the Senate,” Republican Sen. Rand Paul of Kentucky told CNN's Wolf Blitzer this past week. If Paul has trouble seeing Harry Reid as the apostle of good government, he has plenty of company.

But on the idea of ending the practice of Senate filibusters to stall presidential appointees, Harry Reid is right. Half-right anyway.

The presidential appointment process has been broken for years. Newly elected presidents, mostly because of Senate foot-dragging, simply aren’t allowed to staff the executive branch. This is a scandal. Two years into his first term in office, 20 percent of President Obama’s appointments were unconfirmed. Some of this was because of (Senate-imposed) confirmation procedures, some was because of a backlog in FBI background checks, some were because of the mysterious “holds” any senator can put on a nomination.

In 2009, at a time of the worst financial crisis since the Great Depression, the joke in Washington was that Treasury Secretary Timothy Geithner was “Home Alone.” Whatever your opinion of the consumer regulatory commission Congress crafted in response to that crisis, by what right did Senate Republicans scuttle the nomination of Elizabeth Warren, the person Obama wanted to head the agency?

For their trouble, Republicans got Elizabeth Warren as a colleague—a trade they must rue privately—but the important issue here is culpability. The American people choose a chief executive with the expectation the president will carry out his program. He can’t do it by himself. So there’s something to Obama’s argument, issued Thursday, that Republicans were engaged in a “deliberate and determined effort … to re-fight the result of an election.”

No such power resides in the Constitution, no matter how expansively one interprets “advice and consent.” That’s because the filibuster is not in that document, and the mere threat of a filibuster essentially stops Senate business unless one party can cobble together a super-majority of 60 votes. That’s difficult to do in today’s Senate, which breaks down 55-45 for the Democrats.

Ending this practice (it was last amended in 1975; before, it required a two-thirds vote) has been dubbed “the nuclear option.” It’s no such thing, of course. It’s a reform designed to make Washington more responsive to voters.

“The American people believe Congress is broken,” Harry Reid said as he rounded up 52 Democratic votes to change the rule. “The American people believe the Senate is broken. And I believe they are right.”

And so Reid and the Democrats change Senate rules by breaking the rules. But here’s the problem. Well, two problems.

First of all, the skirmish that provoked Democrats into taking the nuclear option wasn’t over executive branch appointees. It was over federal nominees to the appellate bench. These are lifetime appointments, and Republicans are concerned that the president is trying to pack the courts with ideologically simpatico jurists. Why wouldn’t they be? Obama brags about it. “We are remaking the courts,” he tells liberal audiences.

The second aspect of this that Republicans find hard to swallow—as they should—is the Democrats’ hypocrisy. Perhaps hypocrisy is too mild a word. When George W. Bush was president and Democrats were in the Senate minority, they did everything they could to sabotage his judicial appointments.

They used stalling tactics, the filibuster, and outright character assassination. Obama took great pride in appointing a Hispanic to the Supreme Court, but Bush wanted to do it first. He couldn’t even get the brilliant Miguel Estrada appointed to the D.C. Court of Appeals—the same panel that Democrats have now gone nuclear over.

Comparing the quotes of Democrats then to Democrats now—and we’re talking about the same people—is a case study in situational ethics. In 2005, when Republicans invoked the very same idea he has now rammed through the Senate, Harry Reid said the filibuster “serves as a check on power and preserves our limited government.”

He wasn’t the only one. Here’s then-Sen. Obama back then: “[A] change in the Senate rules would change the character of the Senate forever. … You would have, simply, majoritarian absolute power on either side, and that’s just not what the Founders intended.”

And here is Sen. Chuck Schumer: “We are on the precipice of a crisis, a Constitutional crisis. The checks and balances, which have been at the core of this republic are about to be evaporated, by the nuclear option. … It is amazing, almost a temper tantrum.”

The two most prophetic Democratic senators were Dianne Feinstein of California and a certain small-state senator with national ambitions named Joe Biden.

“The nuclear option, if successful, will turn the Senate into a body that could have its rules broken at any time by a majority of senators unhappy with any position taken by the minority,” said Feinstein. “It begins with judicial nominations. Next will be executive appointments. And then legislation.”

“I say to my friends on the Republican side,” added Biden: “You may own the field right now, but you won’t own it forever. And I pray God when the Democrats take back control we don’t make the kind of naked power grab you are doing.” 

Carl M. Cannon is the Washington Bureau Chief for RealClearPolitics. Reach him on Twitter @CarlCannon.

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