The high court and Harry Reid’s high jinks

The Gor­such vote pushes Democrats to­ward their own booby trap

The Washington Times Daily - - OPINION - By Cal Thomas Cal Thomas is a na­tion­ally syn­di­cated colum­nist. His lat­est book is “What Works: Com­mon Sense So­lu­tions for a Stronger Amer­ica” (Zon­der­van, 2014).

What goes around comes around is one of life’s un­de­ni­able tru­isms and never more than in the pol­i­tics of Washington, D.C. (the “D.C.” in­creas­ingly stand­ing for dys­func­tional city). Last week was Cherry Blos­som week in D.C. This week it’s Neil Gor­such week. Repub­li­cans must now de­cide whether to use the “nu­clear op­tion,” a par­lia­men­tary pro­ce­dure that al­lows the U.S. Se­nate to over­ride a rule or prece­dent by a sim­ple ma­jor­ity of 51 votes, in­stead of by a su­per­ma­jor­ity of 60 votes, as a tool for con­firm­ing Pres­i­dent Trump’s nom­i­nee to the U.S. Supreme Court.

For those whose pri­mary diet is not pol­i­tics, a lit­tle history will help ex­plain the pedi­gree of the nu­clear op­tion.

The con­sti­tu­tional op­tion has been around in one form or another for more than a cen­tury. Writ­ing on the web­site Think Progress, Ian Mill­hiser ref­er­ences a Fed­er­al­ist So­ci­ety ar­ti­cle in 2004: “The ba­sic mech­a­nism was de­vised by Repub­li­cans in 1890 to de­feat a Demo­cratic fil­i­buster of a bill per­mit­ting mil­i­tary in­ter­ven­tion in South­ern states that pre­vented African-Amer­i­cans from vot­ing.”

That in it­self is in­ter­est­ing since the history of Demo­cratic op­po­si­tion to civil rights, es­pe­cially in the South, has largely been for­got­ten as mod­ern Democrats smear Repub­li­cans for their al­leged “voter sup­pres­sion” of mi­nori­ties. But I di­gress.

Un­der the 1890 plan, notes Mr. Mill­hiser, “Sen. Nel­son Aldrich (R-RI) pro­posed in­tro­duc­ing a mo­tion as­sert­ing that ‘when any bill, res­o­lu­tion, or other ques­tion shall have been un­der con­sid­er­a­tion for a con­sid­er­able time, it shall be in or­der for any se­na­tor to de­mand that de­bate thereon be closed.’ ”

Aldrich then en­vi­sioned, notes Mr. Mill­hiser, “a se­ries of steps where the pre­sid­ing of­fi­cer of the Se­nate would re­ject the process pro­posed by his mo­tion, and a sim­ple ma­jor­ity of the Se­nate would re­verse the pre­sid­ing of­fi­cer’s de­ci­sion.” The plan was never ac­ti­vated be­cause “Democrats caved and al­lowed a vote on the bill out of con­cerns that Aldrich would suc­ceed.”

That is the choice for Democrats this week with the Gor­such nom­i­na­tion. Should enough of them vote to get to the 60-vote ma­jor­ity cur­rently re­quired for a Supreme Court nom­i­nee, or should they do what their lib­eral base is de­mand­ing and vote “no,” prompt­ing Se­nate Ma­jor­ity Leader Mitch McCon­nell of Ken­tucky to change Se­nate rules to al­low Judge Gor­such to be con­firmed by a sim­ple ma­jor­ity?

Democrats don’t have a cred­i­ble leg to stand on in op­pos­ing a change in Se­nate rules. That’s be­cause for­mer Ma­jor­ity Leader Harry Reid of Nevada changed the rules to con­firm fed­eral judges nominated by Pres­i­dent Obama by a sim­ple ma­jor­ity over Repub­li­can ob­jec­tions.

“Power” is de­fined as the “abil­ity to do or act” and hav­ing the “ca­pa­bil­ity of do­ing or ac­com­plish­ing some­thing.” As long as Repub­li­cans have the ma­jor­ity, they should con­sider us­ing their power. They have the num­bers, so they have the abil­ity. The ques­tion is, are they ca­pa­ble enough to con­firm Judge Gor­such with lit­tle sup­port from Democrats?

Some­times it ap­pears Repub­li­cans are more con­cerned about neg­a­tive press cov­er­age, which they will get sim­ply be­cause they are Repub­li­cans, than about the wrath of vot­ers. All politi­cians use power to ad­vance their agenda. And now that Democrats are in the mi­nor­ity, they are us­ing what lit­tle power they have, aided by their like-minded me­dia col­leagues, to stymie the Repub­li­can agenda.

If the nu­clear op­tion is nec­es­sary to con­firm Judge Gor­such, Repub­li­can sen­a­tors should use it. And they should keep it for all fed­eral judges, just as Democrats did with Mr. Obama’s nom­i­nees. This is what Democrats fear most, be­cause with a clear con­ser­va­tive ma­jor­ity on the Supreme Court and more con­ser­va­tives on lower courts they could no longer ex­pect judges, rather than leg­is­la­tors, to ad­vance their agenda and they would have to be ac­count­able to vot­ers.

Sounds to me like a good op­tion.


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