Harry Reid Destabilizes the Senate

Richard Epstein

Harry Reid moved the senatorial goalposts by eliminating the 60-vote filibuster for all presidential nominees except potential Supreme Court justices. There is a good reason that this has been dubbed the “nuclear option” — this decision will have consequences that outlast the current short-term political controversies over appointments that are languishing in the Senate.

The immediate motivation for the change was the Republican decision to filibuster three presidential nominees for the Circuit Court for the District of Columbia and Mel Watt, the President’s choice to head The Federal Housing Finance Administration. Both the Democratic move and the Republican opposition have strong political motivations. The District of Columbia court handles many of the biggest battles over regulatory policy, a large fraction of which are not reviewed by the United States Supreme Court. Its relatively light caseload is not therefore an indication of modest judicial influence.  The three nominees are intended to increase the odds that Democratic legislation will receive a cordial reception in a judicial setting.

It is easy therefore to identify the motivations for both parties. The question is whether it is possible to make some judgment as to who is right. On this score it is unhelpful to look at this year’s decisions in isolation. The question is how it all plays out over time.

This precise issue came up in 2005 ,when the Democrats decided to filibuster judicial nominees of George W. Bush, and the Republicans declined to use the nuclear option. The Republicans believed that precedent created an implicit promise that the Democrats would reciprocate when they took power. The Senate’s decision to end the filibuster therefore broke an intergenerational compact that will not be easy to put together again in a climate of deep ideological divisions and profound institutional distrust.

This decision is, in my view, a mistake — and the justifications put forward for it make little to no sense. In his own remarks on the point, the President seemed to care little about the institutional issues, but stressed how the change in Senate rules would allow him to advance his agenda on equal rights for women, immigration, and jobs. That logic will properly fall on deaf ears for many people who disagree with the president on those issues. It is simply dangerous and unwise to couple the use of the filibuster to any political agenda. Surely it would be wholly impermissible for the Democrats to argue for the reinstatement of the filibuster when and if the Republicans control the White House on the grounds that their nominees are likely to oppose key elements of the Democratic agenda. 

Nor can it be reasonably said that the use of the filibuster is counter to the ideals of democracy. That is a very simple view that doesn't recognize the threat that majority control could pose to minority interests. Indeed, the entire United States Constitution has all sorts of practices that require supermajority votes on such things as the confirmation of treaties by the Senate, (which requires a vote of two-thirds of the members present) the need for a two-thirds majority in both houses to override a presidential veto, and the devilishly complex procedures for constitutional amendments.  The entrenched protections of the Bill of Rights are yet further evidence of the dangers of majority rule. A stable democracy has to worry not only about the short-term passions of the nation, but also about its long-term stability. That is precisely what is threatened by a procedure that is likely to lead to more dramatic swings in both domestic and foreign policy with any change of political power.

No one should give any credence to Harry Reid’s view that the changes in question were needed to make sure that the Senate does not become “obsolete.” He did not take that position during the Bush Administration, when he defended the filibuster on the same institutional grounds on which the Republicans defend it today. His justification for the shift has the same tinny quality as the President’s. It takes two parties to make the political climate worse, and the decision of the Republicans to stiffen their spine need not be a sign of political stubbornness. It could also be a principled form of resistance to democratic overreaching.

On this score, then, the Democrats have to face some hard questions that neither the President nor Senator Reid are prepared to address. Nor is this the first time that they have employed such high-stakes maneuvers. Similar questions are raised by the issue of recess appointments, which is now up for grabs before the Supreme Court in National Labor Relations Board v. Noel Canning.  George Bush pulled back from making nominations when the Democrats kept the Senate in what is called pro forma session. But when the Republicans did that, President Obama decided to make some “recess” appointments of nominees to the National Labor Relations Board who were presented to the Senate just before the conclusion of normal business. Once again, the Democrats were prepared to trash a convention that the Republicans had chosen to respect.

There are many complex arguments that can be raised on either side of the constitutional questions. My guess is that those recess appointments will be invalidated precisely because they upset the long-term balance between the President and the Senate. But no matter which way the case comes out, the entire nation will bear the institutional costs associated with the change of a rule which, in spite of its many frustrations, has served the nation well. Remember, on questions of government, moving too fast is often more dangerous than moving too slow.