In 2005, Senate Republicans floated the idea of altering Senate rules to eliminate the filibuster for judicial nominees. The proposal, dubbed the nuclear option, involved breaking Senate rules to change Senate rules. (The rules require a two-thirds vote for rules changes, but the nuclear option changes the rules by simple majority.) Democrats fought back against it furiously. Harry Reid led the fight, saying on the Senate floor: “I would never, ever consider breaking the rules to change the rules.” Well, adjust your clocks to “never.” Reid is now poised to execute the nuclear option.
Reid is willing to gut the filibuster at the behest of union bosses who want to keep the National Labor Relations Board (NLRB) stacked with corrupt union lawyers who will continue to rig the rules to make it easier to force workers into unions. Even worse, the specific NLRB nominees Reid wants to break Senate rules to approve were already illegally appointed by President Obama.
The same media that was howling when Republicans considered the nuclear option are tying themselves into knots to justify it now that Democrats are in control. Consider this astonishing deception from NBC News: “The NLRB nominations have been pending so long that President Obama used so-called recess appointments -- appointing board members while the Senate was out of session -- to allow the board to function.”
“Pending so long”? President Obama named his NLRB nominees on December 14, 2011 and installed them via putative recess appointment on January 4, 2012. That’s 21 days. Some of the days were, obviously, major holidays. The nominees never filled out questionnaires or even underwent background checks. They didn’t meet with any Senate Republicans, who nonetheless are blamed for obstructing them.
“While the Senate was out of session”? No. The Senate was in session; Senator Ben Cardin had gaveled in the new session of Congress just the day before.
D.C. Circuit Court Chief Judge David B. Sentelle wrote: “An interpretation of ‘the Recess’ that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction.”
The Supreme Court is almost certain to agree later this year.
You would think the Senate would, as an institution, recoil at the prospect of being effectively denied its constitutional prerogative of advice and consent. But for Senate Democrats, partisanship and dependence on union political muscle trump that concern.
Instead of nominating qualified members other than the ones he had already been rebuked in federal court for attempting to install illegally, Obama chose to renominate his illegal appointees and deliberately provoke confrontation. Reid is happily playing along, even to the point of nuclear escalation. Even though it means, as he described it as recently as 2008, the Senate as the Founders designed it would cease to exist.
All it takes to stop the nuclear option is five Democrats willing to stand up to Reid’s power grab. Just five willing to see past the next election to the certainty that someday Democrats will be back in the minority. Just five willing to consider that a Republican president may someday propose nominees they’d like to filibuster. Just five who want the Senate to remain the Senate.
It was once written: “There will come a time when we will all be done, and the institutions will either function well because we’ve taken care with them, or they will be in disarray and someone else’s problem to solve.” That’s from Harry Reid’s 2009 book. In the chapter on stopping the nuclear option.
Mr. Kerpen is the president of American Commitment and the author of “Democracy Denied.” Kerpen can be reached at phil@americancommitment.org.