A bitter taste of filibuster medicine

We shouldn’t return to the old [filibuster] rule. We should teach these blunderheads that they made a big mistake. And we have the votes to stop bad judges if we want to. And frankly I intend to win with our candidate the presidency in 2016 and we will give them a taste of their own medicine. — Sen. Orrin Hatch (R-Utah)

Next year will mark Orrin Hatch’s 39th as a U.S. senator. First elected in 1976, Hatch will become the body’s president pro tem, behind only the vice president and House Speaker in the line of presidential succession. He is a self-described constitutional conservative, one who preaches respect for limits on the power of the federal government and on those who serve in its respective branches.

{mosads}So it is no small thing when Hatch bluntly reverses himself and backs the pillage of the Senate rules that outgoing Senate Majority Leader Harry Reid (D-Nev.) perpetrated last year. Reid employed shady procedural tactics to make it impossible to filibuster the nomination of agency officials and federal judges. As recently as September, Hatch argued for restoring enforcement of the Senate rule as written. “We should get [the rule] back to where it was,” Hatch said at the time. “You can see the destruction that has happened around here.”

That act of destruction required the complicity of the current president pro tem, Sen. Patrick Leahy (D-Vt.). While presiding over the Senate, Leahy overruled Reid’s vacuous point of order, which asserted that cloture on most nominations can be invoked by a majority vote. Senate rules explicitly state that a motion to invoke cloture can prevail only with the assent of “three-fifths of the Senators duly chosen and sworn.” Reid’s point of order was palpably false and Leahy was right to reject it. But when Reid appealed the ruling, Leahy voted with his fellow Democrats to overturn his own ruling, an act of naked cynicism that created a precedent that gutted the rule.

Hatch will soon become the second president pro tem to endorse this evisceration of Senate rules and procedures. And he will be acting out of the same motivation. Leahy and his Democratic colleagues have used the ruling to pack the federal bench with judges who are thought likely to overlook the legal and constitutional infirmities of the laws Democrats have passed and the executive actions President Obama has taken. Hatch believes that his party will recapture the White House in 2016 and that a GOP-controlled Senate will use its majority to ram through the confirmation of judges who will be favorably disposed to the new president’s actions, however suspect. Thus would he give Reid, Leahy and their fellow “blunderheads” who ransacked Senate rules “a taste of their own medicine.”

He may, of course, be wrong. The odds are that Democrats, with only 10 seats to defend in 2016, will recapture the Senate majority. They also are early favorites to hold the White House against a large, and so far undistinguished, swarm of GOP aspirants. If Hatch is wrong and Democrats prevail next time, congressional Republicans once again will find themselves without leverage in the confirmation process and powerless to stop executive overreaches on immigration, environmental policy, healthcare and a thousand other matters.

But the greater damage may come if Hatch proves right. Should Republicans win in 2016 and choose to govern like Democrats — disdaining constitutional, legal and procedural limits on their power — then they will further undermine the “institutions and traditions that have made this nation so great and free,” as Hatch described them in his speech.

The restrictions imposed by the rules and traditions of those institutions, so frustrating to the party in power, are what prevent our politics from deteriorating into a street fight, with rival factions lurching the country now left and then right, but always farther from its constitutional moorings and the Founding Fathers’ designs.

The taste of that medicine would be very bitter indeed.

Badger was formerly deputy assistant to the president for legislative affairs, where he helped formulate the George W. Bush administration’s policy and legislative strategy.