In what he once called an “un-American” proposal that would “ruin our country,” Senate Majority Leader Harry Reid instigated a change in Senate rules last week that would eliminate the filibuster for confirmations of all presidential nominations except for Supreme Court Justices.
In essence, the rule change is a far-reaching shift of power from Congress to the executive branch. Reid’s so-called “nuclear option” allows the Senate to confirm federal judges and other political appointees with a simple majority vote, rather than the 60 votes it might take for a determined Senate minority to prevent the chamber from voting on a nominee.
President Barack Obama, who will now enjoy a rubber-stamp on all but his most controversial nominees, unsurprisingly applauded the action, citing “the unprecedented pattern of obstruction in Congress that’s prevented too much of the American people’s business from getting done.”
Even if unprecedented, it’s hard to blame Republicans for throwing up procedural roadblocks in front of a lame duck president with a 39 percent approval rating.
Despite the American people’s broad rejection of the president’s “business” in the 2010 midterm Congressional elections, Obama began his aggressive “We Can’t Wait” campaign in 2011, hoping to use executive orders and agency regulations to force as much of his agenda as possible without input from those troublesome Congressional Republicans. Agency rules and regulations spiked during that time, including those implementing Obama’s persistently unpopular signature legislative achievement. The GOP’s most fiercely obstructed nominations have been Obama’s appointments to the U.S. Court of Appeals for the District of Columbia Circuit, which has jurisdiction over the president’s vast federal bureaucracy.
Now why exactly shouldn’t Republicans obstruct the progress of executive appointments that might help implement a healthcare law a majority of Americans oppose and a majority never wanted in the first place?
At any rate, political appointees with a four-year shelf life are small beans compared to federal judges. Judges, even when nominated by an unpopular president, serve for life terms and may sit on the bench for decades. In 2005, the New York Times described the filibuster of President Bush’s judges as “the center of the peculiar but effective form of government America cherishes.”
And the federal judiciary has grown immensely powerful over the past several decades. Judges have decided elections, changed “mandates” into “taxes,” regulated political speech, required affirmative action and created an intricate web of abortion rules out of thin air. Judges in the future will likely establish what types of guns Americans may own, the definition of marriage and whether the Constitution requires Americans to receive “free” education, childcare and health care. Those are pretty hefty societal questions to be left to a few unelected judges chosen by a single unpopular president and 51 Senators.
When judges insist on playing legislator, it shouldn’t be any surprise that the nomination process has become intensely partisan. Republicans — and Democrats — should have every right to obstruct judicial nominees that may dictate social policy for decades.
With the confirmation bar now set dramatically lower, Obama’s legacy will not be Obamacare, assuming it survives — it will be the Obama judiciary.
