Hypocrisy on the ‘Nuclear Option’

COMMENTARY Homeland Security

Hypocrisy on the ‘Nuclear Option’

Dec 2, 2013 3 min read
Hans A. von Spakovsky

Election Law Reform Initiative Manager, Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration.

On Nov. 21, Sen. Harry Reid (D-Nev.) and other members of the Senate, with the support of President Obama, who apparently lobbied wavering Democrats, broke the rules to change the rules and got rid of the filibuster for presidential nominations. So much for the tradition of debate in the U.S. Senate. The consequences could be dire.

When Harry Reid was the minority leader in the Senate in 2005 and Republicans were contemplating such a change, Reid said the “filibuster was far from a procedural gimmick.” According to the 2005 Reid, the ability to engage in extended debate was “part of the fabric of this institution we call the Senate” and “within the vision of the Founding Fathers of our country. They established a government so that no one person – and no single party – could have total control.”

Reid even promised that he would never “employ or use the nuclear option,” which he claimed would “ruin our country.” But this is now and that was then – he apparently has no problem today engaging in behavior he once called “un-American.”

President Obama issued a statement approving heartily of what Harry Reid and the Democrats had done to trample on the rights of the minority. Too bad he didn’t go back and re-read the statements of then-Sen. Obama, who severely criticized the GOP proposal in 2005 and said that if the majority chose to change the rules and put an end to democratic debate, “then the fighting and bitterness and the gridlock will only get worse.” That prediction of the 2005 Obama is sure to come true.

And, it is worth noting, in 2005, then-Sen. Joseph Biden decried the prospect of the Republicans exercising the nuclear option, stating: “The nuclear option abandons America’s sense of fair play. It’s the one thing this country stands for. … And I pray [to] God when the Democrats take back control we don’t make the kind of naked power grab you are doing.”

What makes all of this even worse is that the exercise of the nuclear option in the Senate was based on a total fraud – the claim that the Republicans have engaged in unprecedented obstruction of President Obama’s nominees. But as Sen. Chuck Grassley (R-Iowa) has pointed out, prior to the recent success of the Republicans in stopping the three judicial nominees for the under-worked D.C. Circuit Court of Appeals that are part of President Obama’s court-packing plan, Republicans had stopped a grand total of just two of his judicial nominees.

Democrats have claimed that Senate Republicans have filibustered 34 of the president’s nominees, but that is a fraudulent number, generated by Sen. Reid through “a procedural gimmick,” according to Grassley. In fully half of those cases, Reid filed cloture motions even though Republicans had expressed no opposition to the nominees. None of those 17 cloture petitions required a vote – every petition was withdrawn, and every one of those nominees was confirmed. Of the remaining 17, Reid himself withdrew another six of the cloture petitions. So only 11 nominees actually ever faced a real cloture vote, and six of those nominees were confirmed.

Compare this to 30 real cloture votes during the Bush administration; the Democrats were successful in 20 of those votes, effectively killing those nominations. So the Democrats had an “obstruction rate” during the Bush administration that was four times larger than what is happening today.

In fact, during President Obama’s tenure in office, the Senate has confirmed 209 of his lower court Article III judges. That is a 98 percent confirmation rate. In the 112th Congress, according to Grassley, Obama had more district court judges confirmed than were confirmed in any of the previous eight Congresses. In 2013, Congress has already confirmed 38 lower court judges, which is more than two and a half times the number confirmed at a similar point in President Bush’s second term.

Given these facts, it should come as no surprise that what President Obama says to Democratic donors is very different. In very revealing remarks at a Democratic Senatorial Campaign Committee event in Dallas on Nov. 6, Obama said that “we are remaking the courts…in addition to the Supreme Court, we’ve been able to nominate and confirm judges of extraordinary quality all across the country on federal benches. We’re actually, when it comes to the district court, matching the pace of previous Presidents. When it comes to the appellate courts, we’re just a little bit behind, and we’re just going to keep on focused on it” (emphasis added).

And why is the administration a “little bit behind?” Because of the 93 vacancies in the federal court system, President Obama has not submitted a nomination for almost half of the open positions, 43 of them. It is a little difficult to blame that on Republican obstructionism.

But Obama’s statement reveals the real reason for the exercise of the nuclear option in the Senate. The president and his allies want to “remake” the federal courts. Why? Because they know that one of the only remaining avenues open to conservatives and others to try and stop the abuse of federal power is through the federal court system. And they want federal judges in position who share their ideology and disregard for the strictures of the Constitution to bless everything they are doing.

Given what happened in the Senate, the president and his allies may very well succeed.

- Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation.

Originally appeared in Human Events.