There is a line of thinking in Washington right now that the destruction of the Senate, as an institution, is acceptable collateral damage in the war to repack the federal courts after our “inevitable” presidential victory in 2016.
One “talking head” put it this way: “…this is not simply an internal matter, a question of the “club’s” agreed upon rules.” A good friend and and high-ranking conservative told me that the Senate was condemned to majoritarian mob rule on both nominations and legislation — and that the only question was how we facilitate this for our advantage.
I would ask conservatives to ponder what this view would mean the next time Democrats have a “wave” election.
Take a look at the bills on the Senate calendar during any of the past forty years which were not brought up because they didn’t have 60 votes: Gun control and gun bans of every variety. Taxpayer funding of abortion-on-demand. Forced unionization. Massive tax increases on the “1%.” A rewrite of election rules to make it impossible for Republicans to compete. A massive expansion of same-sex legal guarantees. A proliferation of new intrusive liberal agencies. A withdrawal of energy resources from public availability. A patch to keep ObamaCare in place.
Basically, the end of conservatism, as a philosophy that has any impact on public policy.
The courts aren’t going to save us from any of these. And, even if we had nothing but Reagan appointees on the courts, we would still get the wrong decisions.
It was Antonin Scalia, after all, who, on page 54 of the Heller decision, gave the okay for virtually all but the most draconian gun control. As a result, lower courts of all political stripes have used this language since then to approve hundreds of far-reaching state gun bans, including New York’s and Maryland’s — virtually everything, in fact, short of a direct, immediate, total and absolute ban on all firearms.
Similarly, it was Sandra Day O’Connor who introduced the dangerous concept of the constitutional right to abortion to protect the “health of the mother.” It was Anthony Kennedy who gave the go-ahead for the wave of same-sex rights currently sweeping the courts. And it was John Roberts who cast the deciding vote to uphold ObamaCare — on the theory that the government can do anything so long as it is masqueraded as a tax.
And the interesting thing that the intellectual children who invented the nuclear option in 2005 didn’t have the depth of experience to understand that the nomination filibusters which they feared can usually be broken by simply wearing the filibusterers down — as was done, for instance, during the Carter administration on behalf of gas deregulation and the Reagan administration in order to increase the federal gas tax. And they certainly didn’t have the experience to understand, as many of us warned, that the Democrats would some day take control and would use their little invention to pack the courts — which they, in fact, did.
Now, the same “analysts” think that embracing the wreckage of the nuclear option (including the 51 vote threshold for nominations) will allow them to repack the courts when Republicans take over in 2017.
This scenario certainly makes a lot of assumptions with respect to the ascendency of the Republican brand — assumptions which most Washington pollsters do not currently accept. And, if Republicans embrace the consequences of Harry Reid’s use of the nuclear option in 2013 — and if they don’t prevail in 2016 — the Supreme Court is gone, as is the conservative legislative agenda.
No, it is not going to be easy to put the genie back in the battle — to “unring the bell,” in the words of incoming Majority Leader Mitch McConnell.
But it is worth trying.
The ethics rules can be amended to impose sanctions — up to and including expulsion — for its invocation. Harry Reid can be punished electorally and through the completion of the nuclear waste depository at Yucca Mountain, Nevada. And the Chair can use its power of recognition to force Democrats to replace him with someone else.
Republicans can make it clear that, unless Democrats agree to undo the consequences of the nuclear option, they will use it force something truly monumental, like authorizing the creation of a resolution which, like a political convention’s “unanimous ballot,” which “deems” that two-thirds of the Senate has voted to override a veto.
Finally, with respect to Reid’s impact on the courts, Republicans, if they are successful in 2016, can use reconciliation to creating offsetting judgeships on the courts, so long as they have an offset. And they can use stacked votes and attrition to wear down opposition to their confirmation.
Thanks to both the people who invented the nuclear option in 2005 and Harry Reid, who used it, we are not in a good place right now.
But, although the restoration of Senate as a honorable institution not governed by a mob and an autocrat is not easy, it is necessary.