A Feeble Case for Destroying Senate Rules

Now comes a National Review article by an “Ed Whelan” attacking my position in favor of the institutional role of the Senate.  And what a tantrum it is!  Whelan is clearly fond of adjectives and invectives.  As for arguments, well, not so much.

Before I get to a point-by-point rebuttal, let me just go back, briefly, to the general issue:   There is no conceptual difference between the way you destroy nomination rules by the nuclear option and the way you destroy the legislative filibuster by the nuclear option.  Whelan and his ilk are laying the groundwork for the destruction of the legislative filibuster, and, once that happens, the next Democratic “wave” is going to permanently destroy everything we believe in:

The vast array of gun bans and gun control.  Taxpayer-funded abortion-on-demand.  Same-sex rights.  Immigration reform even more extensive than last year’s bill.  Forced unionization.  Tax increases.  A patch for ObamaCare.  A rewrite of election rules so that Republicans would be permanently disadvantaged.  A broad range of intrusive new federal agencies.  And on and on.

Those of us who were responsible for putting “holds” on these bills and killing them for almost twenty years realize that these things are not the law of the land because of the Senate rules.  We also realize that, had they passed, the courts would not protect us from them.

But let’s go through the irrelevancies of Whelan’s jeremiad one-by-one:

1.  Whelan attacks me for talking about the “nuclear option” as a 2005 phenomenon, when the push for its implementation really began.  Whelan counters that “explor[ation]” of the option began in 2003.

Actually, if you’re talking about exploration, the general idea had been floating around since at least the mid- to late-1970’s, and I and others battled it then.  Whelan would not know this because, at the time, he was an actual child, not just an emotional one.

Whelan also argues that it was “confirmed to [him]” that the actual details of the nuclear option, not just the general frustration with the pace of judicial confirmation, was “driven by Republicans members,” notably Ted Stevens and Trent Lott.

If he genuinely believes this, he has never stood on the Senate floor and advised senators on parliamentary procedure.

I have.  I stood behind one of Whelan’s mentors, [mc_name name=’Sen. Orrin Hatch (R-UT)’ chamber=’senate’ mcid=’H000338′ ], in 1984, and worked him step-by-step through the process of putting an amendment tree in place.  I have done the same for many, many other senators.

Whelan can hock his delusional narrative as much as he wants, but the fact is, that it was an article by former Senate staffer Marty Gold, coupled with a concerted lobbying campaign led by an outside think tank that pushed and pieced together votes for that enterprise.

2.  No one is defending the Democrats.  But we pushed for Hatch to do the same under the Clinton administration.  And the fact that Republicans failed to fight Clinton harder, and then were offended because their Democratic colleagues did not reciprocate is hardly an indictment of those who complied with the rules.

3.  We did warn that Democrats would one day be in charge, and that they would use this device which “conservatives” had created to retaliate with a vengeance.  And that’s exactly what happened.  And, yes, I think it’s absolutely clear that, if Republicans had not picked up the by-then archaic idea, given it respectability, and turned it into a national debate, Reid and the Democrats would not have pursued it in 2013.  And this is based on the fact that the movers of the initiative — [mc_name name=’Sen. Jeff Merkley (D-OR)’ chamber=’senate’ mcid=’M001176′ ] and [mc_name name=’Sen. Mark Udall (D-CO)’ chamber=’senate’ mcid=’U000038′ ] — were as oblivious to what was happening in the 1970’s as Whelan is.

So let me ask this:  Even if they had been successful, is the handful of “lower-court nominees” Whelan claims to have been fighting for worth Reid’s comprehensive efforts to pack the federal courts?

One more thing:  Whelan contends that “the filibuster is a more difficult tool to deploy for Supreme Court nominations.”  No it’s not.  I was in the middle of the Bork fight — again, well before Whelan’s time.  The chief problem was that the White House didn’t have a head count.  But, had it been needed, you shouldn’t deceive yourself into thinking that that nomination would not have been successfully filibustered.

4.  Whelan recycles the discredited notion that the ability of the Senate to make its rules implies the ability of the Senate to make those rules non-binding.

No it doesn’t.  And here’s a news flash:  IF THE RULES ARE NOT BINDING, THEY ARE NOT RULES.

Whelan goes on to make an argument that is as dangerous as it is crazy:  “Senate rules that limit the immediate realization of majority sentiment [do not exist because of a] legal impediment.”

If this is true — and if Democrats take the Senate and the White House in 2016 (or at any time) — the Supreme Court is lost.  Furthermore, the legislative filibuster is lost.  It is the end of the line for everything conservatives care about.

5.  Whelan attacks me because he claims that [mc_name name=’Sen. Harry Reid (D-NV)’ chamber=’senate’ mcid=’R000146′ ], once he gains control, will simply re-nuke.  In my point 3, I briefly provided a wide variety of moves to make sure this doesn’t happen.  Whelan either doesn’t know how to read or doesn’t care.

6.  Whelan can protest, as much as he wants, the proposition that the demise of the nomination filibuster presages the demise of the legislation filibuster.  But, oddly, in order to justify his position, he explicitly states that neither is binding.  Does he not understand the inconsistency of his position?

7.  Finally, Whelan defends the nuclear option by citing the senators who supported it in 2005.  So I would ask this question:  How many of those same senators thought it was legitimate in November, 2013?

Whelan and his ilk are like children playing with dynamite.  They have already blown off their hands.  But they won’t stop until they blow off their heads.