Commentators called it “momentous,” “unprecedented,” etc. But the Senate Republican rule change on Thursday eliminating the 41-vote filibuster for Supreme Court nominees didn’t change much.
As we noted earlier in the week, Sens. Harry Reid and Chuck Schumer dropped the real nuclear bomb in 2013. Majority Leader Mitch McConnell on Friday merely cleared away some of the rubble of destruction they left in their wake.
The earth-shattering, ground-breaking change in Senate rules wasn’t the Republican vote on Thursday. All that did was bring the rules for cloture for a Supreme Court nominee into line with the rules for all other federal judicial nominees.
Reid didn’t drop the bomb by lowering the threshold from 60 to 51 for circuit court and appellate nominees, either. That was merely Reid’s first action in the post-nuclear wasteland he created.
The real nuclear option was when Harry Reid used a bare majority of the Senate to change the rules.
Senate Rule 22 states clearly, and did at the time that cloture can be invoked if and only if “that question shall be decided in the affirmative by three-fifths of the senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the senators present and voting.”
Reid only had 57 votes for cloture on an Obama judicial nominee. He obviously didn’t have 67 votes to change Rule 22. So he just pretended that Rule 22 meant something different. He raised a point of order, claiming that Rule 22 set the vote on cloture “for all nominations other than for the Supreme Court of the United States is by majority vote.”
This was obviously false, the parliamentarian ruled. So Reid appealed the ruling of the chair. Fifty-two Democrats voted that “three-fifths” really meant “three-fifths, except in the case of circuit court and appeals court nominees, then it’s a bare majority.”
It was a flat-out falsehood, which is hardly unprecedented in Reid’s lamentable, dishonest and dishonorable career. More importantly, by using the tool of “appealing the ruling of the chair” to change the rules of the Senate, Reid and his party abolished the rules of the Senate. Any democratic institution in which the rules can be changed by a majority is an institution without rules. It is pure power politics. Today Republicans have the power, and on Thursday they used it, broadening Reid’s rule change so that applied evenly to all federal judges.
But let there be not mistake, the nuclear moment was Reid’s abolition of Senate rules.
We don’t share the hoary sentimentality for Senate traditions on which Robert Byrd used to speechify. What we mourn is a Senate having rules. The Senate hasn’t had rules since Nov. 21, 2013, and the bare-majority rule change on Thursday was a mere reminder.
Democracy needs rules. Minority rights are crucial to prevent majority overreach and to prevent dramatic alternations in government. A democracy where the majority is unfettered is one where the stakes of every election are intolerably high. In such a setting, there is no room for comity, or even for honesty. It becomes a by-any-means-necessary war in which all is fair.
It’s fitting that Reid would have chosen to abolish Senate rules in a battle over the federal courts. Liberal justices such as Ruth Bader Ginsburg and the late John Paul Stephens have shown themselves willing to rewrite the Constitution in order to shape the law to their liking. The notion of a government constrained only by a “living Constitution” is analogous to a Senate constrained only by the rules the majority sets on any given day.
We write this lament not because of what Republicans did on Thursday. The Gorsuch vote has merely been an occasion to revisit the scene of Reid’s 2013 crime.
Not every old tradition of the Senate has been worth keeping. But the idea of rules that constrain even the majority was a good idea. Just as it’s a good idea that the nation’s laws and Constitution constrain the majority. Democrats want to kill that idea. Three years ago Reid succeeded in the Senate. It is an occasion for national thanksgiving that the confirmation of Neil Gorsuch to the Supreme Court will make it hard for his successors to administer the same coup de grace to the laws of the land.
