Rare News Desk
With their newfound Senate majority, Republicans have an important decision to make about the filibuster for judicial and executive-level nominees. Restoring this crucial protection of minority rights should be a no-brainer, but some Senate Republicans want to preserve the unprecedented rule change to gain a measure of political payback.
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In November 2013, Majority Leader Harry Reid (D-NV) invoked the “nuclear option,” a change to Senate rules that would lower the cloture threshold for confirmation of judicial and executive-level nominees from 60 votes to 51 votes, damaging a crucial, long-established check on majority power.
Though Reid once vigorously opposed gutting the filibuster for judicial nominees, the move served two convenient political purposes that helped him change his mind. First, it was a clear attempt to change the topic of discussion away from the disastrous rollout of the ObamaCare exchanges, which was, at the time, the focus of political news coverage.
Secondly, the lower threshold gave Reid and Democrats a chance to pack the D.C. Circuit Court of Appeals with judges that would be more amenable to President Barack Obama’s regulatory agenda. Reid said as much in an interview with a Nevada-based radio station. “We’re focusing very intently on the D.C. Circuit,” Reid told KNPR. “We need at least one more [seat filled]. There’s three vacancies. And that will switch the majority. So we’re working on it.”
The D.C. Circuit Court, which is responsible for reviewing regulations and rules written by federal agencies, is the second-most powerful court in the judicial system. This appellate court had already been a thorn in the side of the Obama administration in disputes over “recess appointments” the National Labor Relations Board, and with a string of controversial new regulations being advanced by federal agencies, such as recent rules promulgated by Environmental Protection Agency that heighten the war on coal, Democrats wanted to provide more amenable atmosphere for the president’s agenda.
Reid’s move to eliminate the filibuster received a cacophony of criticism from Republicans, who, rightly, slammed the move as a power grab. But now that they have control of the chamber, many Republicans want to keep the rule change in place.
The day following the election, for example, Sen. Orrin Hatch (R-KY) argued against reinstatement of the filibuster in a joint op-ed with former White House counsel C. Boyden Gray. “It will fall to the next Republican president to counteract President Obama’s aggressive efforts to stack the federal courts in favor of his party’s ideological agenda,” Hatch and Gray wrote in the Wall Street Journal. “But achieving such balance would be made all the more difficult — if not impossible — if Republicans choose to reinstate the previous filibuster rule now that the damage to the nation’s judiciary has already been done.”
The desire for retribution is understandable. Reid ran the Senate like a dictator by blocking amendments offered by the minority and gutting the chamber’s rules, but Republicans should take a serious look at the ramifications of maintaining the status quo.
It is a slippery slope, and there is no getting around it. The precedent has been established for a gutting of the filibuster whenever the party in power decides it is convenient. While Reid may have preserved the filibuster for Supreme Court nominees, imagine a scenario in which a Democratic president does not have 60 votes to stave off a Republican filibuster of a far-left pick. If Republicans are not in the majority, they would be powerless to prevent another rule change further gutting the procedural tactic amid cries of “gridlock” and “obstructionism.”
This is a very real scenario for 2016. With several competitive Senate seats on the line, the Republicans majority will be at risk. And though she’s a weaker candidate than the media would like to admit, Hillary Clinton’s likely bid for the White House presents a challenge for Republicans. In short, there are no guarantees for the GOP, making the preservation of the nuclear option incredibly short-sighted and potentially disastrous.
Senate Republicans should heed the advice of James Madison, who, in Federalist No. 51, discussed preservation of minority rights. “It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part,” wrote Madison. “If a majority be united by a common interest, the rights of the minority will be insecure.”
Madison may not have been talking about minority rights in the Senate, but his words still rings true in the debate over the filibuster. If Republicans are serious about offering Americans a distinction between themselves and Democrats, they will return to regular order and restore the filibuster in the opening days of the next Congress.
