The Senate Spectator

Harry Reid Smashes History

Hundreds of years of Senate precedent? Meh.

By 11.21.13

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Harry Reid went and did it. He bent the rules to break them. In so doing, he effectively annihilated hundreds of years of procedural convention that has required a firm 60-vote majority to confirm presidential appointments. 

Now, the president’s executive branch and judicial nominees can slide through with a simple majority. Any opposition will prove toothless. This changes everything.

To put things in perspective, our friend Dan McCarthy at the American Conservative estimates this is the “biggest change to the institutional character of the Senate since the ratification of the 17th Amendment.” That might be an understatement. The conversations I’ve had with friends and colleagues on the Hill imply that this is the single greatest revocation of the minority party’s deliberative rights in American history.

Yet for all the atomic analogies, the issue that prompted Reid’s decision may appear banal. The Majority Leader went nuclear over the U.S. Court of Appeals for the District of Columbia Circuit, and three relatively low-profile nominees.

You may ask yourself, “Why would three appointments to an arcane appeals court prompt Harry Reid to tank constitutional precedent?” Most likely, Reid was trying to cement another sort of legal convention.

This little known appeals court packs a powerful jurisdictive punch. Within the Beltway, it’s viewed as the second most powerful court, given its proximity to power, and outsized agency over national security and regulatory decisions. It’s known as the “Rocket Docket” for its speedy expedition of cases to the Supreme Court. And its majority disposition hangs in the present balance.

The court seats 11 justices—currently there are three vacancies on its bench. On Monday, Senate Republicans effectively blocked President Obama’s third consecutive nominee, Robert Wilkins, weathering a 58—38 vote that fell just shy of the majority needed to advance the nomination. Earlier this month, the GOP checked the appointment of Georgetown law professor Cornelia Pillard. “Super-litigator” Patricia Millet’s nomination was blocked on Halloween.

This all comes down to a presidential push to pack the court. As Senator Reid made clear back in August, “We’re focusing very intently on the D.C. Circuit. There’s [sic] three vacancies, and we need at least one more, and that will switch the majority.”

Reid’s complaints about Republican obstructionism have been consistent. Before the majority leader joined 51 Democrats and independents for today’s vote, he took the Senate floor to protest unsettled nominations and unprecedented delays. “There are currently 75 executive branch nominations ready to be confirmed by the Senate, waiting an average of 140 days,” the Washington Post reports him grumbling.

His refrain is familiar, but that doesn’t make it any less fictional. Back in March, when Reid last threatened exercise of extreme majoritarianism, Senator Mike Lee (R-UT) revealed the hypocrisy, writing:

…the Senate has already confirmed more of President Obama’s nominees (129) than it did during President George W. Bush’s entire second term (120), and has done so at an almost identical pace (average of 218 and 211 days, respectively, from nomination to confirmation).

It should not be forgotten that Senate Democrats blocked President George W. Bush’s nomination of Miguel Estrada and Peter Keisler, in 2002 and 2006, respectively. In both instances, the Democrats applied their minority privileges to check the appointments.

Reid might have noted the parallels. Instead, he doubled down on this artificial crisis, decrying phony obstructionism to achieve parliamentary mob rule. 

His decision will further polarize an already “obsolete” Senate. More galling, he’s content to ignore the obvious. By razing the parliamentary architecture envisioned by the Framers, he’s undermined the institution he pretends to preserve. Recall Federalist 51, in which James Madison discusses the means by which our republican government can curb the tyranny of the majority. Most importantly, he emphasizes the importance of constitutional resistance to “encroachments” by competing branches.

Reid’s having none of that.

It’s important to note that this rules change does not apply to Supreme Court nominees, who are still subject to a 60-vote filibuster threshold, or legislation debated on the floor of the Senate.

However, Senator Reid has drastically increased the president’s legal leverage, while fortifying a lifetime legacy of judicial activism on this nation’s second most powerful court.

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Reid Smith writes from Washington. Follow him on Twitter @reidtsmith