The Washington Times: Op-ed by Sen. Alexander: The power grab behind the crocodile tears

Posted on July 17, 2013

This week’s “nuclear option” debate about whether U.S. senators should be permitted to filibuster presidential nominations was not about filibusters.

It was instead about whether a majority of senators should be able to change the rules of the Senate anytime for any purpose. Former Sen. Arthur Vandenberg of Michigan once offered the precise trouble with this idea: “If a majority of the Senate can change its rules at any time, there are no rules.”

In other words, this was a power grab.

Despite Democrats’ crocodile tears, filibusters — the requirement of securing 60 senators’ votes to allow a vote on a nomination — have done little to frustrate presidential nominations.

According to The Washington Post, President Obama’s Cabinet nominees during his second term are moving through the Senate about as rapidly as those of Presidents Clinton and George W. Bush.

According to the Congressional Research Service, in the history of the Senate, the number of times filibusters have denied a seat to a nominee for the Supreme Court, the president's Cabinet or federal district judge is zero. (The only arguable exception is President Lyndon Johnson’s engineering of a 45-43 cloture vote in favor of the nomination of sitting Supreme CourtJustice Abe Fortas to be chief justice in order to lessen the embarrassment of Fortas‘ failure to attract the support of a majority of senators for confirmation.)

Ironically, most of the frustrating of presidential nominations by filibusters has been done by the Democrats themselves. The number of federal court of appeals nominees who have been denied their seats by filibusters would also be zero were it not for the decision by Democratic senators in 2003 to filibuster 10 of President George W. Bush’s appellate court nominees. This led to the “Gang of 14” compromise that allowed five of those to be confirmed, but discarded the other five. Since then, Republicans have retaliated by denying two of Mr. Obama’s appellate nominees.

Over the years, there have been seven sub-Cabinet nominees blocked by filibuster — three Republicans and four Democrats, all since 1994.

So the grand total of presidential nominees who have been blocked by filibusters (failure to obtain 60 votes to cut off debate) is 14. And it is fair to say that Democrats sowed the seeds of the current controversy when they filibustered Mr. Bush’s appellate judges in 2003.

So, what were Democrats complaining about?

For many Democrats, getting rid of the filibuster for nominees is the first step in turning the Senate into an institution where the majority rules lock, stock and barrel.

The Senate would become like the House of Representatives, in which a majority of only one vote could establish a Rules Committee with nine members of the majority and four of the minority. Every meaningful decision would be controlled by the majority. The result: The minority, its views and those it represents would become irrelevant.

It would be the same as having the power to add an inning or two to a baseball game if you don’t like the score in the ninth inning.

Alexis De Tocqueville, the young Frenchman who traveled the United States in the 1830s, warned against this kind of governance. He wrote that the two greatest dangers to the American democracy were Russia and the “tyranny of the majority.”

In his book on Thomas Jefferson, Jon Meacham writes of an after-dinner conversation between President Adams and Vice President Jefferson. Adams said that “no republic could ever last which had not a Senate and a Senate deeply and strongly rooted, strong enough to bear up against all popular passions” and that “trusting to the popular assembly for the preservation of our liberties was [unimaginable].”

John Adams was right. And so was then-Minority Leader Harry Reid in 2005 when, opposing Majority Leader Bill Frist’s effort to use the “nuclear option” to kill the filibuster on judicial nominations, he said: “And once you open that Pandora’s box, it was just a matter of time before a Senate leader who couldn’t get his way on something moved to eliminate the filibuster for regular business as well. And that, simply put, would be the end of the United States Senate.”

The only real confirmation issue before the Senate is Mr. Obama’s use of his recess appointment power to install two members of the National Labor Relations Board when the Senate was not in recess, a blatant affront to the constitutional separation of powers that the District of Columbia Circuit Court of Appeals said was unconstitutional.

Fortunately, a compromise has been reached in which the president is sending to the Senate two new, untainted nominees for the board. This week’s debate, however, shows the threat to the end of the United States Senate lingers.

Those Democrats still seeking to create a Senate in which a majority can change the rules whenever it wants should be prepared for what could happen next. Their dream of a Democratic freight train running through a Senate in which a majority can do whatever it wants might turn into their nightmare if, in 2015, that freight train is the Tea Party Express.

Sen. Lamar Alexander is a Tennessee Republican.