Last Thursday, I sat in a hospital waiting room in Richmond, Virginia, while my wife was undergoing abdominal surgery. A bit after noon, my phone buzzed. It was a CNN ‘breaking news’ alert:
The Democratic-controlled Senate today voted to invoke the so-called nuclear option out of frustration over Republicans who have been blocking President Barack Obama’s nominees.
The controversial move is a rules change that could make a partisan environment even more divisive because it takes away the right for the Senate’s minority party to filibuster.
Under the old rules it took 60 votes to break a filibuster. The change now allows most filibusters of Obama nominees to be stopped with 51 votes—a simple Senate majority.
I could do without CNN’s amateurish characterization of the Democratic senators’ motivations, and a bit more context would have been welcome (although I do understand that news alerts must be brief) . . . but still, I got the point. The Democratic majority in the United States Senate managed to do exactly what a Republican majority considered doing in 2005, before being stymied by Senator John McCain (R-AZ) and the bipartisan ‘Gang of Fourteen.’
The ‘filibuster’ is an unusual nuance of the Senate rules that allows senators the privilege to speak as long as they want on any topic they want, and they can only be stopped by a vote of ‘cloture’—which requires a three-fifths (sixty-vote) super-majority. In practice, an individual senator can hold-up or stop a vote on a bill by simply talking, and talking, and talking . . . unless enough fellow senators can be convinced to vote to make him stop.
In the olden days, senators actually had to stand up there and talk. Senator Strom Thurmond (D-SC) holds the filibuster record, once talking for twenty-four hours and eighteen minutes in opposition to the Civil Rights Act of 1957. (And no, Thurmond’s party appellation is not an error. He was a Democrat until he switched parties in 1964. Republican senators voted unanimously for the Civil Rights Act. Eighteen of the Senate’s twenty-nine Democrats, however, voted against.) Today, senators are not expected to actually filibuster anything. Basically anything that anybody threatens to filibuster gets tabled unless there are enough votes to beat the filibuster. So it’s sort of an unspoken rule that nothing controversial progresses to a real vote in the Senate unless sixty senators are okay with it moving forward.
Supporters of the filibuster characterize it as a way of protecting the minority party’s interests. Both parties have generally played along because they both recognize that a strong majority today could easily be a withered minority after the next election cycle. Putting up with the other guys’ obstructionism today gives you a license to be the obstructionists tomorrow. And although I don’t have any particular affinity for the filibuster myself, the U.S. Constitution gives each house in Congress the authority to make up its own rules . . . no matter how silly they might be (Article I, Section 5).
But the Senate cannot set rules that run afoul of its constitutional responsibilities. Oh sure, they can decide how they debate and consider bills, how they schedule their sessions, who sits where, how votes are counted, and so on. But they couldn’t create a rule saying that they’re only going to convene once every two years . . . because the U.S. Constitution says they have to assemble at least once per year (Article I, Section 4). They couldn’t create a rule that allows them to skip the counting of presidential electors . . . because they are required by the U.S. Constitution to participate in the counting, and select a vice president if none of the candidates has an electoral majority (Twelfth Amendment).
It follows, then, that the filibuster can be used to affect the scheduling (or lack thereof) of votes on particular bills, but it could not be used to skip-out on the Senate’s constitutionally-mandated roles in the operation of our government.
This is why I have been saying for years and years that the use of the filibuster with regard to presidential appointments is unconstitutional. Under the U.S. Constitution, Article II, Section 2, the President of the United States has the authority “nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States. . . . ” The Senate can’t just say to the president that, oh, we’re not interested in providing you with any advice or consent for your nominees.
The Senate does, of course, have the right to vote down a nominee and force the president to make a new nomination. Fair enough. But it can’t just refuse to act on the nomination at all. The Senate has a constitutional duty, and their filibuster rules don’t trump those duties.
Back in 2005, the Democratic Party minority in the Senate was engaging in an unprecedented obstruction of President George W. Bush’s (R) judicial nominations. At the time, I (at the risk of being labeled a Republican partisan) strongly supported the Republican majority’s moves to invoke the so-called ‘nuclear option’—a change to the Senate rules that would allow a straight up-or-down majority vote on presidential nominations. And when McCain and his ‘Gang of Fourteen’ stood in the way, I condemned them for it. I criticized McCain’s pro-filibuster (and anti-constitutional) antics when I [somewhat reluctantly] endorsed him in the 2008 presidential election.
Today, it is the Republican Party minority in the Senate that is engaging in a no-longer-unprecedented obstruction of President Barack Obama’s (D) judicial nominations—possibly a childish retaliation for what happened eight years ago. But there is no ‘Gang of Fourteen’ anymore, and the Democratic majority successfully invoked the ‘nuclear option.’ Most presidential nominees, with the notable exclusion of nominees to the United States Supreme Court, will get a proper up-or-down vote. The Senate will begin doing its constitutional duty.
I’ll give McCain credit for consistency; he opposed the ‘nuclear option’ in 2005 and he still opposes it today. I hope you’ll give me some credit for consistency too; I supported it in 2005, and I still support it today (which I guess makes me a Democratic partisan now . . . right?). McCain can blather on about the Senate’s traditions and how grand the filibuster is, and if we were talking about regular old filibusters I might be willing to entertain his argument, but the Senate’s filibuster rules don’t give the Senate the right to ignore the U.S. Constitution.
Many of my fellow ‘conservatives,’ including many of the same Republicans who thought the ‘nuclear option’ was a great idea back in 2005, are apoplectic now that the Democrats have actually done it. My news feeds and email boxes lit up with warnings of a slim Democratic Party majority in the Senate confirming Satan himself to the federal judiciary. Gun Owners of America sent out an email message saying, “Last Thursday, November 21, is a day that will live in infamy,” and claimed that, “The Senate now effectively has no rules” (full disclosure: I am a GOA member). I’ve seen claims that radical leftists will now be appointed and confirmed to the Supreme Court, even though the Democratic ‘nuclear option’ explicitly doesn’t apply to Supreme Court nominations . . . and we don’t know if there will be any court vacancies any time soon anyway.
Come on guys; get a grip. Up until very recently, the Senate generally accepted presidents’ nominees unless they were unqualified for the job or subscribed to particularly radical political positions. Does that mean that some ideologues—on both sides—have landed in the federal judiciary, the Supreme Court, and presidents’ cabinets? Yes. But those are the consequences of our presidential elections. If the president’s party holds a Senate majority, then the president will likely get his nominations. That’s politics. If the people don’t like it, they can vote for better senators or a better president next time around.
Every once in a while, people ask me why I’m not a Republican. After all, I agree with the Republican Party’s official positions on many of the key political issues, and I vote for Republicans more often than not. I call myself an ‘independent constitutional conservative,’ for lack of any better description, and the Republican Party surely tries to lay claim to both constitutionalism (i.e., the rule of law) and conservatism. But then you have all of these big-name Republicans coming out of the woodwork to defend a Senate rule that is not particularly conservative, and not even slightly constitutional, because it happens to give them a short-term political benefit.
Many of them, excluding McCain and his crew, were on the other side of the issue back when those same rules gave that political benefit to the other guys. Many of them claim to be lovers of the U.S. Constitution, but are perfectly happy to ignore that pesky ‘advice and consent’ part when it would mean letting a president from the other party have his appointments. These are the defenders of conservative principles? These are the protectors of the rule of law? Come on. They might be the lesser of two evils, depending on how you look at it, but that’s all they are.
Of course, many Democratic Party luminaries have been equally inconsistent. Then-Senator Barack Obama (D-IL), then-Senator Joe Biden (D-MA), and then-Senate Minority Leader Harry Reid (D-NV)—all of whom support the ‘nuclear option’ today—condemned it back in 2005. Biden said at the time, “I say to my friends on the Republican side: You may own the field right now, but you won’t own it forever. I pray God when the Democrats take back control, we don’t make the kind of naked power grab you are doing.” So much for that, right? If you’re looking for a political party that is morally consistent from year to year (or even week to week), you’re not going to be very happy with the big two.
But I’ll take little victories where I can find them. No matter how cynical their motivation, no matter how inconsistent their politicos on this and other subjects, the Democratic Party’s late embrace of the ‘nuclear option’ is a boon for constitutionalism . . . at least for now. Unfortunately, the underlying constitutional question remains unresolved, and the Senate may choose to revert this change in the future. And if they do, and the Senate begins obstructing nominations again, the president should fight it all the way to the Supreme Court.
As for the Republican Party, well, if you guys want to be taken seriously as the party that reveres and upholds the U.S. Constitution, might I make a couple of suggestions? First, read it. Second, follow it.