On Thursday, 225 years of Senate tradition was cast aside by Sen. Harry Reid (D-NV) when he invoked the so-called "nuclear option" and eliminated filibusters against most presidential nominations. "The American people believe Congress is broken. The American people believe the Senate is broken. And I believe they are right," Reid said Thursday on the Senate floor. "The need for change is so very, very obvious." What's just as obvious is the primary motive behind this effort: to tilt an evenly-divided U.S. Court of Appeals for the District of Columbia Circuit decidedly to the left.
The historic rule change was passed by a vote of 52-48, with three Democrats, Sens. Mark Pryor (D-AK), Joe Manchin (D-WV), and Carl Levin (D-MI), opposing the alteration. Senate Minority Leader Mitch McConnell (R-KY) was incensed, not only by the change itself, but the fact that a simple majority of 51 votes was used to change the rule itself, rather than a supermajority of 60 votes that normally applies to Senate rule changes. After accusing Democrats of a power grab, McConnell suggested they will regret their decision when Republicans regain control of the chamber. “We’re not interested in having a gun put to our head any longer,” McConnell said addressing his colleagues form the Senate floor. “Some of us have been around here long enough to know that the shoe is sometimes on the other foot.” Addressing Democrats directly he predicted that they will regret their decision "a lot sooner than you think.”
As of now, the change does not apply to Supreme Court nominations. But on Wednesday, Sen. Charles E. Grassley (R-IA), the ranking Republican on the Senate Judiciary Committee, warned Democrats that if they insisted on changing the rules, the GOP will up the ante when they attain majority status, leaving Democrats no opportunity to filibuster appointments to the nation's highest court.
The move marks quite a change of heart by Reid. In 2005, when Republicans had a Senate majority and threatened to invoke the nuclear option over stalled nominees, Reid argued passionately against the very same procedure he used yesterday. “They are talking about doing something illegal. They are talking about breaking the rules to change the rules, and that is not appropriate," he said in April of that year. "That is not fair, and it is not right.” A month later he remained just as adamant. “To change the rules in the Senate can't be done by a simple majority. It can only be done if there is extended debate by 67 votes,” he insisted.
Thus, it was no surprise that Republicans accused Reid of hypocrisy. Democrats countered that McConnell was ready to support the nuclear option when former Majority Leader Bill Frist (R-TN) wanted to strip the power to filibuster from the Democrat minority eight years ago. The most obvious flaw in the Democrats' argument is that it never actually happened.
Now that it has happened, courtesy of Reid's about-face, the three nominations blocked by Republicans from sitting on the nation's second most powerful court will undoubtedly be confirmed. Those nominees are Patricia Millett, Nina Pillard and Robert Wilkins.
Patricia Millet is by far the most reasonable pick for a spot on the DC Court. She is a former member of the Solicitor General's Office under both Democratic and Republican administrations, and magna cum laude graduate of Harvard Law School. She has argued more than 30 cases before the Supreme Court, has advocated for members of the military and their spouses (she is married to a Naval Reservist) and is a woman of faith.
Nina Pillard and Robert Wilkins are entirely different stories. Pillard is a radical feminist who wrote a 2007 law review article contending that abstinence-only sex education is not only "permeated with stereotyped messages and sex-based double standards about acceptable male and female sexual behavior and appropriate social roles," but that it is unconstitutional. She defines ultrasounds as “deceptive images of fetus-as-autonomous-being that the anti-choice movement has popularized since the advent of amniocentesis.”
Yet perhaps the best example of her radical mindset was her discussion of the Supreme Court case "Hosanna-Tabor Evangelical Lutheran Church v. EEOC" at a September 2011 press briefing for Georgetown’s Supreme Court Institute. The case was about the right of the Lutheran Church to choose their religious ministers. She characterized the Church's position as “a substantial threat to the American rule of law,” and predicted the Court would be unlikely to uphold it. The Court ruled 9-0 in the Church's favor. Thus, it would not be unreasonable to assume Pillard is to the left of even the most leftist judges on the Supreme Court.
Robert Wilkins' press release reads like a dream. He received his B.S. from the Rose-Hulman Institute of Technology in 1986 and his J.D. from Harvard Law School in 1989. The Legal Times has named him one of the 90 Greatest Washington Lawyers of the Last 30 Years, and he currently practices "corporate defense/white collar, technology, and commercial litigation."
What Wilkins' press release fails to mention is that he led an illegal occupation of a Harvard law school building. He and his fellow students demanded a commitment from Harvard to hire 20 women or minority group members over the next four years as tenured or tenure-track professors. Seven of the professors, including four women, were to be black. That protest was undertaken in support of radical bigot Derrick Bell, whose Critical Race Theory posits that America is, and always has been, an intrinsically racist society.
Democrats were primarily frustrated by the Republicans' use of the filibuster to hold up these nominations, along with the main reason they cited for doing so, which was the assertion that the DC appellate court's light work load didn't require additional judges. Republicans further asserted that their aggressiveness with regard to filibustering nominations was exactly the same approach Democrats have taken when they were in the minority.
Harry Reid has now altered the equation entirely.
Unsurprisingly, President Obama supported the move. "A deliberate and determined effort to obstruct everything, no matter what the merits, just to re-fight the results of an election is not normal, and for the sake of future generations, it cannot become normal," he said.
Just as unsurprisingly, Obama, like Reid, took the exact opposite position in 2005. “I sense that talk of the nuclear option is more about power than about fairness,” Obama said in a speech before the Senate in April of that year. “I believe some of my colleagues propose this rules change because they can get away with it rather than because they know it’s good for our democracy.”
He also issued a warning. “The American people want less partisanship in this town, but everyone in this chamber knows that if the majority chooses to end the filibuster--if they choose to change the rules and put an end to democratic debate--then the fighting and the bitterness and the gridlock will only get worse,” Obama said.
Now that the filibuster has been eliminated, Republicans are equally pessimistic. “When you start, it’s like wars--there’s no end to this. I don’t know where it goes,” said Senator Lindsey Graham (R-SC). Senator Lamar Alexander (R-TN) had an even darker perspective. “In my view this is the most important and most dangerous restructuring of Senate rules since Thomas Jefferson wrote them at the beginning of our country,” he warned.
Perhaps the most cogent understanding of the consequences was presented by Richard Arenberg, an adjunct lecturer at Brown University. Arenberg also served as a Senate staffer for 34 years. “For more than 200 years, the Senate has protected the privileges of the minority to debate and to amend legislation,” he explained. "As poisonous as it gets sometimes, lines of communication between the majority and the minority are always open.” With the change, he believes it's only a matter of time before the filibuster is eliminated completely, destroying the fundamental way the Senate operates.
Sen. Mark Pryor, one of the three Democrats who opposed the measure, echoed Arenberg's central assertion, contending in a statement that the Senate was "designed to protect--not stamp out--the voices of the minority."
Nonetheless, progressives were ecstatic. "This was not a decision made easily or taken lightly. There was no choice. The Republican minority had turned the existing rules into weapons of mass obstruction," said Alliance for Justice President Nan Aron. Conservatives were disgusted. "For Harry Reid and President Obama, this is not about a couple circuit court judges; this is an attempt to remake America to reflect their unworkable and unpopular progressive vision," said Michael Needham of Heritage Action.
Many Republicans contend the move was designed to distract from the most unpopular progressive vision currently before the public, namely ObamaCare. "Today we face a real crisis in the confirmation process, a crisis concocted by the Democrat majority to distract attention from the ObamaCare disaster and, in the process, consolidate more power than any majority has had in more than 200 years," said Sen. Orrin Hatch (R-UT) in a statement. House Speaker John Boehner (R-OH) concurred. "It sounds to me like Harry Reid is trying to change the subject and if I were taking all the incoming fire that he's taking over ObamaCare, I'd try to change the subject too," he contended.
Ultimately, it doesn't matter why Reid did what he did. What matters is that the congressional chamber long described as "the world's greatest deliberative body" can no longer lay claim to that mantle. Reid who is every bit the bully Sen. Rand Paul (R-KY) described him as, has opened up a Pandora's Box destined to radicalize Congress's upper chamber. Each switch of party control is likely to strip away more minority rights as a tit-for-tat consolidation of power is played out over and over, with no end in sight. As that happens, each side will become even more hardened than they are now.
Currently, progressives are happy with that development. Ironically, their elation may be far more short-lived than they imagine. Most Americans have yet to experience the full scope of the debacle ObamaCare represents. But when the next round of 50 million to 100 million insurance policy cancellations that await employees with "ungrandfathered" policies hits--beginning a month before the 2014 mid-term elections--there is a good possibility that Reid and company may find themselves as neutered as they are making Republicans right now. In other words, what goes around, comes around.
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