Harry Reid Destabilizes the Senate

 Harry Reid moved the senatorial goalposts by eliminating the 60-vote filibuster for all presidential nominees except potential Supreme Court justices. There is a good reason that this has been dubbed the “nuclear option” — this decision will have consequences that outlast the current short-term political controversies over appointments that are languishing in the Senate.

The immediate motivation for the change was the Republican decision to filibuster three presidential nominees for the Circuit Court for the District of Columbia and Mel Watt, the President’s choice to head The Federal Housing Finance Administration. Both the Democratic move and the Republican opposition have strong political motivations. The District of Columbia court handles many of the biggest battles over regulatory policy, a large fraction of which are not reviewed by the United States Supreme Court. Its relatively light caseload is not therefore an indication of modest judicial influence.  The three nominees are intended to increase the odds that Democratic legislation will receive a cordial reception in a judicial setting.

It is easy therefore to identify the motivations for both parties. The question is whether it is possible to make some judgment as to who is right. On this score it is unhelpful to look at this year’s decisions in isolation. The question is how it all plays out over time.

This precise issue came up in 2005 ,when the Democrats decided to filibuster judicial nominees of George W. Bush, and the Republicans declined to use the nuclear option. The Republicans believed that precedent created an implicit promise that the Democrats would reciprocate when they took power. The Senate’s decision to end the filibuster therefore broke an intergenerational compact that will not be easy to put together again in a climate of deep ideological divisions and profound institutional distrust.

This decision is, in my view, a mistake — and the justifications put forward for it make little to no sense. In his own remarks on the point, the President seemed to care little about the institutional issues, but stressed how the change in Senate rules would allow him to advance his agenda on equal rights for women, immigration, and jobs. That logic will properly fall on deaf ears for many people who disagree with the president on those issues. It is simply dangerous and unwise to couple the use of the filibuster to any political agenda. Surely it would be wholly impermissible for the Democrats to argue for the reinstatement of the filibuster when and if the Republicans control the White House on the grounds that their nominees are likely to oppose key elements of the Democratic agenda. 

Nor can it be reasonably said that the use of the filibuster is counter to the ideals of democracy. That is a very simple view that doesn’t recognize the threat that majority control could pose to minority interests. Indeed, the entire United States Constitution has all sorts of practices that require supermajority votes on such things as the confirmation of treaties by the Senate, (which requires a vote of two-thirds of the members present) the need for a two-thirds majority in both houses to override a presidential veto, and the devilishly complex procedures for constitutional amendments.  The entrenched protections of the Bill of Rights are yet further evidence of the dangers of majority rule. A stable democracy has to worry not only about the short-term passions of the nation, but also about its long-term stability. That is precisely what is threatened by a procedure that is likely to lead to more dramatic swings in both domestic and foreign policy with any change of political power.

No one should give any credence to Harry Reid’s view that the changes in question were needed to make sure that the Senate does not become “obsolete.” He did not take that position during the Bush Administration, when he defended the filibuster on the same institutional grounds on which the Republicans defend it today. His justification for the shift has the same tinny quality as the President’s. It takes two parties to make the political climate worse, and the decision of the Republicans to stiffen their spine need not be a sign of political stubbornness. It could also be a principled form of resistance to democratic overreaching.

On this score, then, the Democrats have to face some hard questions that neither the President nor Senator Reid are prepared to address. Nor is this the first time that they have employed such high-stakes maneuvers. Similar questions are raised by the issue of recess appointments, which is now up for grabs before the Supreme Court in National Labor Relations Board v. Noel Canning.  George Bush pulled back from making nominations when the Democrats kept the Senate in what is called pro forma session. But when the Republicans did that, President Obama decided to make some “recess” appointments of nominees to the National Labor Relations Board who were presented to the Senate just before the conclusion of normal business. Once again, the Democrats were prepared to trash a convention that the Republicans had chosen to respect.

There are many complex arguments that can be raised on either side of the constitutional questions. My guess is that those recess appointments will be invalidated precisely because they upset the long-term balance between the President and the Senate. But no matter which way the case comes out, the entire nation will bear the institutional costs associated with the change of a rule which, in spite of its many frustrations, has served the nation well. Remember, on questions of government, moving too fast is often more dangerous than moving too slow.

  1. rico

    My guess is that these appointments will be invalidated precisely because they upset the long-term balance between the President and the Senate.

    Dr. Epstein, I would like to know the mechanism by which the appointments would be invalidated.

  2. Matthew Gilley

    Rico, I’m hardly one to speak for Professor Epstein, but the DC Circuit has already held in the Noel Canning case that the recess appointments to the NLRB were invalid. Here’s how it went – the NLRB charged the Noel Canning Company with violations of the National Labor Relations Act. NLRB procedure is unique; once the Board makes its decision, it can only enforce its determination through an order of a federal Court of Appeals. The case went to the DC Circuit, where Noel Canning argued the Board had no authority to take any action against the company because three Board members were improperly appointed; hence, the Board was operating in the absence of a quorom and could take no action. The court, through Judge David Sentelle, agreed that the purported recess appointments were invalid and declined to enforce the Board’s decision. The government has appealed and the case is waiting to be heard this term. I agree with Professor Epstein that the Supreme Court is likely to agree with Judge Sentelle.

  3. Group Captain Mandrake

    Charles Krauthammer opined on Fox the other day that while it wasn’t illegal or unconstitutional, it was constitutionally indecent. 

    While it does seem to me like a long-term own goal on the part of the Democrats, I have to ask why would they do that?  Is there something that we’re missing, some cunning plan (to quote Blackadder) that will ensure the Democrats prevail through 2014 and 2016 or is it just a huge mistake on the part of an increasingly myopic administration?

  4. Paul Dougherty
    Israel P.:

    Or, the Democratic minority will reinstate in 2015 with the help of a few “principled” GOP senators of the John McCain sort. · in 0 minutes

    One point for thought, Sen McCain won’t be acting on principle so much as to regain his relevance. He, Sen’s Graham and Murkowski et al., lost their most powerful chip in the game. They are no more the power brokers they once believed of themselves.

  5. Paul Dougherty

    To paraphrase a t-shirt I observed on a punk in Picadilly,”Bipartisanship isn’t dead, it just smells like it.”

  6. Barbara Kidder
    Israel P.: Harry Reid and friends are sufficiently shameless that they could reinstate the full filibuster with their lame duck majority in November-December 2014 – and then dare the incoming Republicans to do something about it.

    Or, the Democratic minority will reinstate in 2015 with the help of a few “principled” GOP senators of the John McCain sort. · 1 hour ago

    If Charles Dickens were alive and writing today, I do believe that he would have created ‘Uriah Heep’ as the embodiment of Senator Harry Reid!

  7. Group Captain Mandrake

    I found this gem lurking in Federalist 62 (with my highlighting):

    The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions…..All that need be remarked is, that a body which is to correct this infirmity ought itself to be free from it….

  8. Sabrdance

    I agree with all the problems mentioned here (though I will be surprised if even McCain wants to reinstate the filibuster -surely by now McConnell could convince McCain to get some payback).

    I am curious why I should believe the DC Circuit Court would continue to be unreviewed if it became the 9th Circuit of the East Coast.  The USSC doesn’t hear most cases, but that hasn’t stopped the 9th from being the most overturned circuit.  If DC starts acting like the 9th, I’d imagine the USSC giving it more scrutiny, not less.

  9. rico

    Thanks for detailing that, Matthew. It does seem as though Reid’s push to enable confirmation of the three Obama appointees to the DC Circuit Court is a direct reaction to the case you explained; that is, his mission is to seat appointees who can prevent scrutiny of future appointees.

  10. Rightfromthestart

    They know the Republican leadership consists of spineless morons who, if they ever regain control, will promptly place the shackles back around their own ankles for the sake of comity, collegiality, my good friend , yada, yada.  As usual it’s a win win for them, they know the ‘opposition’ has no guts 

  11. SEnkey
    Rightfromthestart: They know the Republican leadership consists of spineless morons who, if they ever regain control, will promptly place the shackles back around their own ankles for the sake of comity, collegiality, my good friend , yada, yada.  As usual it’s a win win for them, they know the ‘opposition’ has no guts  · 7 minutes ago

    Agreed. The GOP will never move in for the kill when it has the chance. I am glad that we have showed restraint in the past and given proper respect to institutional traditions. But they have removed the gloves, it is time to take them down in a bare knuckle, knock down drag out, no holds barred fight. 

  12. rico
    Group Captain Mandrake:

    …While it does seem to me like a long-term own goal on the part of the Democrats, I have to ask why would they do that?  Is there something that we’re missing, some cunning plan (to quote Blackadder) that will ensure the Democrats prevail through 2014 and 2016 or is it just a huge mistake on the part of an increasingly myopic administration?

    Not myopic. This_is_typical of Obama’s high-risk/high-reward strategy. He pushes his measures through—whatever it takes, cleans up the mess, and moves on. He deflects the damage from himself to everyone else. We all pay the price for his polarizing of political institutions and the nation itself. Harry Reid’s polarized Senate is the most efficient way Forward! through the inconvenient checks and balances of the Constitution—a feature, not a bug .

    The_Progressives_will_stop_at_nothing_in_their_determination_to control all the levers of power. Appointing_judges_who_will_enable and legitimize their agenda was evidently worth enduring criticism for employing the nuclear option. They may not have a step by step plan, but they intend to improvise their way Forward! to an executive-regulatory state with enough progressive judges to preserve whatever gains they can achieve. Ratchet: *click*

  13. Israel P.

    Harry Reid and friends are sufficiently shameless that they could reinstate the full filibuster with their lame duck majority in November-December 2014 – and then dare the incoming Republicans to do something about it.

    Or, the Democratic minority will reinstate in 2015 with the help of a few “principled” GOP senators of the John McCain sort.

  14. Matthew Gilley

    Sabrdance, you’re probably right, and for that reason we should all hope that Justices Scalia, Thomas, Alito, Kennedy, and Roberts are exercising regularly and eating their spinach.

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