Hugh Hewitt hosts a nationally syndicated radio show and is author of “The Fourth Way: The Conservative Playbook for a Lasting GOP Majority.”
When then-Senate Majority Leader Harry Reid invoked the “nuclear option” to break the rules of the Senate in 2013 to allow for simple majority confirmation of presidential nominees, he created not one but two precedents.
The first is that the Senate’s rules and precedents can be changed by simple majority vote, not the vote of 67 senators as had previously been the practice. The second is that nominees to executive-branch positions and the federal bench are confirmed with 51 votes. It is a mere matter of time — and Democratic obstructionism — before this rule is extended to Supreme Court nominees.
The impact of the second precedent is so far-reaching as to be as yet only dimly perceived. The guardrails are down. The change will inevitably produce more conservative judges and justices from Republicans and more liberal judges and justices from Democrats. If you don’t need even one vote from the other party, then only internal party norms will govern.
This is a short-term — and for conservatives such as me, very welcome — windfall for originalism. In my new book, “The Fourth Way,” I examine this topic and speculate that Justice Anthony M. Kennedy, eager to see his federalism jurisprudence cemented on the court, will retire this year to assure a solid federalism-oriented majority for a decade.
Other welcome consequences are relatively easy confirmations of executive nominees who in 2000 or 1992 would have been controversial. Thus, nominees such as Sen. Jeff Sessions (R-Ala.) for attorney general and Oklahoma Attorney General Scott Pruitt for administrator of the Environmental Protection Agency will likely be at work at their desks by George Washington’s real birthday.
The long term may be less rosy. I was originally thrilled with term limits for state legislators in California. They have turned out to be a disaster. I fear the same about the death of the filibuster for nominees.
Still, there is a way back, albeit one that would be painful for Democrats.
I’m not looking to relitigate who broke the system. I think it was the failed nomination of Robert Bork in 1987. Others trace things further back, to the failed nomination of Abe Fortas for chief justice in 1968. It doesn’t matter. The spiral into free-fire zones of character assassination and ideological extremism has been rapid and disastrous.
To repair would mean to first measure the damage and fix it. That means candor about what Reid accomplished when he used the nuclear option. He packed the second-most-important court in the country, the 11-member D.C. Circuit, which now has a 7-4 split between Democratic and Republican nominees. To restore the court to the situation before the nuclear option was detonated, the circuit would first have to expand by four judges, to offset the four liberals named by President Obama. President Trump could be expected to appoint conservatives more wary of rubber-stamping agency regulations and assertions of governmental authority.
Second, there is the question of how long confirmations by simple majority vote should remain in place. Reid acted in 2013, allowing the rule change to ease the way for Obama nominees for three years. Thus the GOP should demand simple majority confirmations through the end of 2019.
During this period of time, the Senate could work out a revised filibuster rule that recognizes that the Senate cannot break down in a rapidly changing age but that rights in the minority party are a stabilizing, moderating influence. Senate leaders Mitch McConnell (R-Ky.) and Charles E. Schumer (D-N.Y.) would be well served to put a group together to start thinking about how new rules could be crafted — and protected against a future explosion.
Institutional rules are essential to creating long-standing, stable institutions, which are also crucial to republics. The action by Reid and Senate Democrats toppled some key pillars and damaged the place. It may be beyond repair. But any effort would have to begin by fixing the D.C. Circuit and accepting simple majority confirmations for three years. That, Sen. Schumer, is the price of restoring the Senate.
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