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Harry Reid’s Nuclear Hypocrisy

November 21, 2013 in Economics

By Roger Pilon

Roger Pilon

Harry Reid is set to “go nuclear.” He wants to end the filibuster as it applies to appellate court nominations — not by a two-thirds vote of the Senate, as Senate rules require, but by a simple majority. And given the short memories now in evidence, he may just succeed.

On Monday, for the third time in less than a month, Senate Republicans filibustered an Obama nominee to the Court of Appeals for the D.C. Circuit. That’s the court that’s checked the president more than once, as when it said he couldn’t make “recess appointments” when the Senate wasn’t in recess. So in a Tuesday closed-door lunch, Reid moved closer to ending the practice, and it’s reported he picked up crucial support from California Democratic senators Dianne Feinstein and Barbara Boxer along with Judiciary Committee chairman Patrick Leahy among others.

Harry Reid wants to end the filibuster as it applies to appellate court nominations.”

The hypocrisy here should not go unnoticed. Although the filibuster for legislation has a long history, prior to 2003 it was seldom used to block executive-branch nominations — and appellate-court nominees in particular. In fact, Democrats themselves began using it this way in the 108th Congress, after they lost the Senatein the 2002 midterm elections. Here’s the backstory.

Start with Bush v. Gore, the Supreme Court’s December 2000 decision that effectively decided the presidential outcome, creating a firestorm among Democrats, especially among the legal professoriate. On January 13, 2001, for example, 554 professors from 120 law schools took out a full-page ad in the New York Times condemning the Court’s majority for having acted not as judges but as “political proponents for candidate Bush.” And at a Democratic retreat a month later Yale’s Bruce Ackerman urged members not to confirm a single Bush nominee for the Supreme Court until after the 2004 elections.

Democrats got their break in May when Vermont senator James Jeffords left the Republican party. That switched control of the Senate to the Democrats, who immediately turned their attention to the eleven appellate court nominees then before the Senate Judiciary Committee, two of them Democrats — a gesture from Bush. Those two were immediately confirmed. The rest would not even get hearings. Instead, Democrats began calling for “litmus tests” — explicit demands that nominees state their views on everything from abortion to affirmative action to Congress’s unquestioned power to regulate anything and everything.

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Source: OP-EDS

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