Tom C. Korologos: The Senate Goes Nuclear, Fallout to Come

The Constitution is chock-full of provisions to protect minority rights. Harry Reid thinks he knows better.

Senate Majority Leader Harry Reid and Sen. Charles Schumer after a news conference Thursday about changing Senate rules.

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Classical Greeks called it “ochlocracy.” Alexis de Tocqueville referred to the “tyranny of the majority.” James Madison warned of “the Superior force of an interested and overbearing majority.” Someone else said, “It’s like two foxes and a hen voting on what to have for dinner.”

Now “nuclear option” has found its way into popular discourse about majority rule—thanks to Senate Democrats who on Thursday broke the filibuster rule and ended the traditional supermajority of 60 votes needed to confirm judicial and executive-branch nominees. In leading the charge, Majority Leader Harry Reid erased 225 years of precedent and altered the soul of the U.S. Senate.

Welcome to a Senate that no longer is “the world’s greatest deliberative body.” Welcome to a Senate that has now formally completed the polarization of the two parties. Uncharted waters lie ahead.

The Founding Fathers, taking note of various definitions regarding so-called majority rule, made it very clear when they drafted the Constitution that its operating principle would not be majority rule, but rather protection of the rights of the minority.

To that end, the Constitution is chock-full of requirements to protect the minority. The original premise of the American system is checks and balances. Three branches of government—legislative, executive and judicial, in that order—are the subject of the first three Articles of the Constitution. Each limits the power of the others. Consider:


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Harry Reid asks, ‘What would you have done?’

Senate Majority Leader Harry Reid of Nev. pauses during a news conference on Capitol Hill in Washington, Thursday, Nov. 21, 2013, after the Democrat majority in the Senate pushed through a major rules change, one that curbs the power of the Republican minority to block President Barack Obama's nominations for high-level judgeships and cabinet and agency officials. (AP Photo/Jacquelyn Martin)

Senate Majority Leader Harry Reid. (Jacquelyn Martin/Associated Press)

Senate Majority Leader Harry Reid just called to ask a perfectly fair question about my column criticizing the Democrats’ filibuster rules change: “What would you have done?”

This is, of course, the sort of problem that actual lawmakers have to wrestle with and that armchair pundits can excuse themselves from addressing.  As the Nevada Democrat saw matters, he had no choice. “They were mocking me,” he said. “They were mocking us.” By blocking all three of President Obama’s nominees to the  federal Court of Appeals for the D.C. Circuit – all four, actually, including one who gave up after languishing for two years — “They kind of dared us to do it,” Reid said.

Senate Republicans’ behavior with respect to Obama’s judicial nominees has been outrageous.  Certainly, Democrats during their time in the minority behaved badly in confirming, or refusing to confirm, Republican nominees, but in nowhere near the numbers of Republicans.  As Reid noted, there have been 23 filibusters of district court nominees total — 20 during the last 4 1/2 years.


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Harry Reid’s Filibuster Gamble

The U.S. Senate finally took action today to diminish the effects of political polarization. It was pretty much a party-line vote.

With 50 Democrats (and two independents) voting in favor and all 45 Republicans (and three Democrats) opposed, the Senate opted to eliminate the filibuster for executive appointments and most judicial nominations. It’s a sensible change, as far as it goes. The question is: How far will it go? The filibuster remains available for legislation and Supreme Court nominees. But it’s questionable how long even that tradition can last.

The filibuster, intended as a protection of minority rights, has become instead a tool to obstruct majority rule. Reasonable minds — some of them even in the Senate — can disagree about where protection stops and obstruction begins. But there can be little doubt about what happened in recent weeks, when Republicans used it to prevent three qualified nominees from taking the bench in the U.S. Court of Appeals for the District of Columbia. Republicans complained that President Barack Obama’s appointments would shift the ideology on the court. Well, yes, that’s one of his prerogatives, isn’t it?

The filibuster is a world-class source of frustration. Its most famous service was in the cause of delaying civil rights to American blacks. Yet the filibuster is also emblematic of a Senate culture that, by design and evolution, has afforded the minority party far more power than it is permitted in the House of Representatives.


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