Way back in 2005, when Republicans were threatening Democrats with the nuclear option, The New York Times, in an op-ed titled “Walking in the Opposition’s Shoes,” called the filibuster a “peculiar but effective form of government America cherishes.” To weaken the procedure, it argued, could mean mutually assured political destruction.
That was then. This week, Harry Reid will insist that Republicans allow up-or-down votes on all three of Obama’s nominees to the powerful D.C. Circuit Court of Appeals: Patricia Millet, Cornelia Pillard and Robert Wilkins. A number of previously restrained Democrats have now signed on to “reform” the filibuster. And if Republicans fail to comply on all three nominees, Reid promises to change Senate rules and limit the filibuster — more than likely establishing a precedent that will end the minority party’s ability to slow nominees of all types, and more. Much more. If history is any indication, once a parliamentary change is deployed, there’s little chance that future Senates, run by either party, will be able to resist and the ensuing arms race will effectively kill the filibuster.
Now, the argument that filibustering judicial nominees is extra-Constitutional may be convincing, but Reid – who may be in the running for the most patently hypocritical politicians of our time — isn’t making that argument:
“We need to do something to allow government to function. I’m considering looking at the rules. Let me just give a mini, mini-lecture on this. The Founding Fathers never had any place in the Constitution about filibusters are extended debate.”
“All this sacred nature of this filibuster? I think what we need and what the American people want is to get things done around here,” he added.
Despite concerted effort by Democrats to create the impression that there’s something unprecedented going on, none of the above is exactly true. By any standard, government is “functioning” (though, often poorly). The electorate isn’t showing up at townhall meetings demanding that the D.C. Circuit Court of Appeals be fully stocked with progressive judges. And, as Reid well knows, the filibuster comports with the spirit of the Constitution quite well.
It’s worth remembering that in 2005, Reid didn’t merely argue that changing the Senate rules was a “raw abuse of power and will destroy the very checks and balances our founding fathers put in place to prevent absolute power by any one branch of government,” he argued that even the “threat” of the nuclear option would decimate checks and balances. Those comments were made in the context of judges, as well. These days, Reid regularly let’s fly with the nuclear threat – and not only when it comes to judicial nominees.
When Reid dropped the threat this summer, John McCain took over negotiations and Republicans quickly relinquished their duty to vet nominees thoroughly. Democrats walked away with Richard Cordray at the Consumer Financial Protection Bureau, Gina McCarthy at the EPA and Thomas Perez as Labor Secretary. At the time, Reid not only insisted that Republicans surrender on the threat of filibustering current nominees, but that they promise to never use the filibuster against any of Obama’s appointments in the future. He almost got everything. These weren’t judges.
What Reid surely learned was that you don’t need the nuclear option, you only need the threat.
Back in 2005, the GOP tried similar intimidation (and those Republicans who were there then and grumble about Reid now, are hypocritics, as well) before seven defected to the Gang of 14 and diffused the showdown. As the New York Times reported, at the time Reid even “praised [President] Bush’s support for “an independent judiciary,” then called on him to ask Senate Republicans to drop their threats to change the rules.”
Today? Well, it’s basically come down to the departing Carl Levin, who has suggested that the Senate start enforce rules that would demand a real-time Ted Cruz type filibuster rather than effectively eliminate the filibuster. “What would that accomplish?” Reid replied when asked about the idea. “I love Carl Levin, he’s one of my friends, we’re going to miss him very much. But the world’s not like it was 30 years ago. Different world here.”
The majority party always believes the minority is irrationally obstructionist. It’s a “different world” because the party administering checks on power happens to be the wrong one. Other than that, the world is very much the same. And it’s going to be much the same moving forward. Which is to say, complicated.
So the question is: would Reid really going to blow up the Senate for some D.C. Circuit Court of Appeals judges? It seems improbable. But if he does, the GOP, should they ever return to power, will have the justification it needs to undo Obamacare – or pretty much anything they please – with their own majority. If the filibuster is neither sacred nor a check on power, there is no reason for legislation or cabinet nominees to be immune from the up-or-down vote. It’s going to mean a lot less stability in DC, a lot more seesawing legislation, and more severe partisanship than anyone in the Senate could possibly desire.
Or, perhaps Reid is so certain that the GOP will capitulate, he feels comfortable issuing ultimatums he knows he’ll never have to follow through on. Well, if Republicans surrender each time Reid threatens them, they have effectively rendered the filibuster useless. They’d be better off checking and taking a look at Reid’s hand. Because as much as some of us believe that the filibuster is an important tool in a healthy Republic, unilateral disarmament in politics only leads to disaster.