November 22, 2013
Lamar Alexander, a Republican, represents Tennessee in the Senate.
Thursday’s stunning rules change by Senate Democrats can best be described as Obamacare II: another exercise of partisan political power to permit the majority to do whatever it wants. This time, the goal was advancing its agenda unchecked through the courts and executive agencies.
With all Republican members opposed, the Senate voted 52 to 48 to invoke the “nuclear option,” allowing a majority of senators present and voting (so, not necessarily 51) to approve presidential nominees except for Supreme Court justices. For those positions, this eliminated the filibuster, which required 60 votes to proceed to an up-or-down majority vote.
This was the most dangerous restructuring of Senate rules since Thomas Jefferson wrote them. It creates a perpetual opportunity for “tyranny of the majority,” which Alexis de Tocqueville called one of the greatest threats to American democracy.
As Sen. Carl Levin (D-Mich.) noted, quoting former senator Arthur Vandenberg on Thursday: “If a majority of the Senate can change its rules at any time, there are no rules.” It is as if the Red Sox, finding themselves behind in the ninth, added a few innings to make sure they could defeat the Cardinals in the World Series. Future majorities could, for example, end the filibuster for legislation, removing any obstacle to tyranny of the majority.
Democrats offered flimsy excuses, many of which are untrue:
Excuse No. 1: President Obama’s appointees have been unfairly denied seats by failed cloture votes, or filibusters.
According to the Congressional Research Service, no Supreme Court nominee has been defeated by filibuster in the Senate. None. (An arguable exception is Abe Fortas’s doomed nomination as chief justice, about which President Lyndon Johnson engineered a face-saving cloture vote.)
The number of federal district judge and Cabinet nominees defeated by filibuster? Zero. Regarding sub-Cabinet nominees, there were two for President Obama, three for George W. Bush and two for Bill Clinton. That’s it.
As for appeals court judges, Republican filibusters have blocked five, but that happened only after Democrats first blocked five. Beginning in 2003, Democrats blocked 10 Bush nominees. This was the first time that a president’s circuit court nominees were blocked by the failure to obtain cloture. Republicans considered the nuclear option, decided against it, and five of the 10 were confirmed.
Excuse No. 2: President Obama’s nominees have waited too long for confirmation.
According to the Congressional Research Service, Obama’s second-term Cabinet nominees have been confirmed at about the same pace as those of Presidents Clinton and Bush.
This year, the Senate has confirmed 36 of Obama’s second-term nominees to circuit and district courts, compared with 14 for Bush at this point in 2005.
On Friday, the Senate’s executive calendar listed 54 nominees who have been waiting less than three weeks for confirmation, 16 who had waited for up to nine weeks and only eight who have been waiting more than nine weeks. Two of those eight nominees were being “held” by Democratic senators.
Excuse No. 3: Republican obstruction left the Democratic majority leader unable to act.
Only Democratic committee majorities can place nominees on the executive calendar. Only the majority leader can move their confirmation. He may do so anytime he chooses.
What if obstructionist Republicans were to place holds on 10 sub-Cabinet nominees? Under the rules that existed before Thursday, the majority leader could have filed a cloture motion on those nominees on Monday and confirmed them by Friday — unless 41 Republicans voted against cloture. Again, that has happened to only two Obama nominees for non-judicial sub-Cabinet positions and only seven times in Senate history.
In his last Senate speech, former majority leader Robert Byrd (D-W.Va.) warned against destroying the filibuster, which he called the “necessary fence” against the executive and popular passions. Majority leaders could do whatever they needed to do under the rules, Byrd said.
Excuse No. 4: Republicans have unfairly blocked the president from filling vacancies on the U.S. Court of Appeals for the D.C. Circuit.
In 2006, Democrats insisted on doing precisely what Republicans are asking in 2013: moving judges from courts where they are not needed to where they are needed most. They did not think this unfair then.
In 2006, Democrats on the Judiciary Committee, including Sens. Patrick Leahy, Joe Biden, Chuck Schumer and Dick Durbin, said that “under no circumstances” should new judges be confirmed to the D.C. court because its workload was half the national average and there were judicial emergencies elsewhere.
With Bush’s approval, the Senate reduced the number of seats on the D.C. Circuit by one, moving that slot to the 9th Circuit. The D.C. Circuit hears fewer cases today than it did in 2007.
So why would Majority Leader Harry Reid (D-Nev.) engineer a rules change that he said in 2006 “would be the end of the Senate”? Because the vote was not about the filibuster. It was about permitting the majority to do whatever it wants.
Call it Obamacare II, for which the only cure is a referendum next November.
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