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Jerry Shenk


High Court Karma

by Jerry Shenk
 

Justice Neil Gorsuch's Senate confirmation wasn't "nuclear" at all.

Ending once-unlimited US Senate floor debates was made possible by a 1917 rule under which senators agreed by a simple majority to end filibusters with two-thirds votes -- still a high bar, so filibusters remained effective at blocking Senate business.

For example, a sixty-day filibuster by "Dixiecrats," all Democrats, delayed the Civil Rights Act of 1964. Then, in 1975, the Senate reduced the number of votes required to invoke "cloture," or end filibusters, from two-thirds to three-fifths -- sixty of the current one hundred senators.

What has become known as the "nuclear option" to eliminate the filibuster only means changing Senate rules again, a process still enabled by a simple majority vote. The filibuster really has little to do with debate. Rather, it's just a 41-vote Senate minority's method for denying votes on matters it wants to prevent the majority from deciding.

It's been mere months since the departure of America's first black president during whose administration once-majority Democrats characterized the Senate filibuster as "outdated," "undemocratic" -- even "racist." Democrats were so adamant that, in 2013, then-Senate Majority Leader Harry Reid, used the "nuclear option," rewriting Senate rules to eliminate the filibuster for presidential nominations other than to the Supreme Court. Hereinafter, that rule change shall be called the "Reid Option."

In a 2013 Tweet, Sen. Reid wrote: "Thanks to all of you who encouraged me to consider filibuster reform. It had to be done."

What "had to be done" was to pack the influential DC Circuit Court of Appeals with three reliably-liberal, Obama-nominated judges.

Asked about worries that Republicans could someday eliminate the filibuster for Supreme Court nominees, Reid said, "Let'em do it. Why in the world would we care? … If they want simple majority, fine."

Time and elections passed, then Karma struck when the Republican-controlled Senate used the "Reid Option" to change Senate rules for Supreme Court nominees, permitting a simple majority vote to confirm widely-respected Judge Neil Gorsuch who received the American Bar Association's highest rating.

Predictably, media is in meltdown. Bloomberg whined: "Senate Republicans Force Historic Rule Change to Advance Gorsuch," counterfactually referring to the filibuster as "one of [the] Senate's most-treasured rules."

Nonsense. It takes only fifty-one Senate votes to change a rule. Nobody "forced" anything. The vote wasn't "historic" in any sense -- the Senate voted on the rule change in full compliance with Senate precedents established in 1917 and 1975 -- and again in 2013 by then-Democratic Majority Leader Harry Reid.

Since Democrats invented and have already used the "Reid option," surely, no one believes that, in the same circumstances, they would have shown any greater restraint, or that, in a hypothetical future Democrat-run Senate, they would not go nuclear again.

Regrettably, Republican Senate Majority Leader Mitch McConnell has said, "There's no sentiment to change the legislative filibuster."

Unilateral disarmament in the face of relentless opposition is seldom wise. Writer Kurt Schlichter offered Senate Republicans sage advice: "Nuke 'Em 'Til They Glow."

http://www.ldnews.com/story/opinion/columnists/2017/04/12/high-court-karma/100367222/


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