Harry Reid may want to sing “Kumbaya,” but that’s no reason for Mitch McConnell to provide the harmony. So writes Senator Orrin Hatch and former White House counsel C. Boyden Gray, in response to suggestions that the new Republican majority move immediately back to Senate status quo ante in January. The damage done by Reid to the judicial confirmation process alone will take plenty of time to reverse, and in order to fix it, Republicans need to keep Democrats to the Reid Standard until a Republican President gets elected:
Specifically, the new Senate must begin by restoring the twin pillars of the institution’s deliberative character: full debate and an open amendment process. Sen. Robert C. Byrd described those two institutional safeguards—open debate and amendment—as bulwarks that ensure “the liberties of the people will remain secure.” In the end, the Senate’s procedural safeguards exist not to protect individual senators, but to preserve Americans’ liberty.
But that fundamental goal—protecting liberty—counsels against blindly returning to the prior status quo. Some bells cannot be unrung. Chief among these is Sen. Reid’s decision to invoke the “nuclear option” to strip minority senators of their ability to filibuster judicial nominees.
The nuclear option allowed President Obama and his allies to reshape the judicial branch dramatically to suit their far-left agenda. And the Democrats were not shy in boasting of their achievement. This summer, after a panel of the U.S. Court of Appeals for the D.C. Circuit struck down the administration’s efforts to extend subsidies to the federal ObamaCare exchange—in clear violation of the plain words of the Affordable Care Act and the stated intent of its architects—the newly minted majority of Democratic appointees on that court voted to rehear the case “en banc.” Sen. Reid announced that the “simple math” of the D.C. Circuit’s new majority of Democratic-appointed judges would serve to “vindicate” Democrats’ use of the nuclear option, presumably by preserving the administration’s signature legislative achievement. …
It will fall to the next Republican president to counteract President Obama’s aggressive efforts to stack the federal courts in favor of his party’s ideological agenda. But achieving such balance would be made all the more difficult—if not impossible—if Republicans choose to reinstate the previous filibuster rule now that the damage to the nation’s judiciary has already been done.
This is Hatch’s response to Reid’s attempt to defuse the issue yesterday. He knows that a number of Republicans want to force Democrats to live under the rules they created for Republicans, and they have every right to demand it just for the sake of justice. As I argued yesterday, they need to make Democrats pay some price for abusing their majority power over the past several years, and especially since last November. Republicans won’t always be in the majority, after all, and the only way to prevent further abuses is to make sure that those who conduct them have to endure the same abuses themselves, at least for a while, or pay some otherwise significant penalty for them. Shunning Harry Reid would actually benefit Democrats, but the end result might be worth forgoing justice if Democrats offered that as penance.
Hatch and Gray make a different argument in this essay, though. The justice they seek is not retributive but normative, in undoing the damage from the court-packing that Reid’s nuclear option produced. That will still end up waiting for at least two years, and depends on electing a Republican President and keeping the Senate in GOP control. The odds of both look at least a little better today than they did last week, but that’s a long time to wait.
In the meantime, though, Hatch would have the Senate return to the status quo ante of 2006, where the minority party got allowed a legitimate opportunity to offer amendments and leadership didn’t short-circuit the committee process. This is a laudable objective and would restore some confidence in the Senate’s ability to effectively govern, especially in the budgeting process. However, it almost seems like a reward to Reid if the GOP begins by allowing Reid the opportunities in opposition that he emphatically denied to Republicans when the GOP was in Reid’s current predicament.
I’m still in favor of keeping the current status quo in place for a while, perhaps until summer, unless Democrats force Reid to the margins. In the long run, though, Hatch is correct — it’s in the nation’s best interest to restore effectiveness and professionalism to the Senate, and in the best interest of the GOP to provide the obvious contrast between governance and Reid’s corruption of the upper chamber. That may end up being the only satisfaction that Republicans get until they can win the White House, but an effective and professional Senate will boost those chances — and then the filibuster “reform” will provide the longest-lasting backfire on Democrats. Can Republicans play that long game?