John Hayward
11/22/2013 09:44 AM

There are a couple of reasons Democrats decided to pull the trigger on the “nuclear option” yesterday, and rewrite Senate rules so that a simple partisan majority can now push through judicial and executive appointments, effectively giving the despotic Barack Obama unlimited power to appoint anyone to anything short of the Supreme Court. It would be an awesome display of both hubris and brutal honesty if Obama simply appointed himself to some of these open positions and sailed through with party-line Democrat confirmation votes, since that’s what the new rules mean in practice.
It was also time to fish or cut bait, as Senate Majority Leader Harry Reid (D-NV) has used the threat of the nuclear option to effectively intimidate the Republican minority on several previous occasions. The threat was losing its effectiveness, so it was time to cook off the bomb.
Yesterday’s Senate drama was, very obviously, intended to be a distraction from the failure of ObamaCare, a bit of juice to shift the focus of a horrific news cycle into discussion of a big Democrat “win.” It also gave the cratering Barack Obama and his allies a chance to rail against Republican “obstructionism,” a favored theme that they’ll probably develop into a 2014 campaign narrative, blaming all their failures on the minority party’s insistence on engaging in dissent. We’ll be told the only real problem with ObamaCare is that Republicans insist on reminding the American people that they were right about it all along.
As far as campaign maneuvers go, this one is likely to backfire on Democrats. For one thing, the media has actually been giving the “nuclear option” fairly muted coverage, because they understand something the (formal) Party political apparatus does not: this naked power grab makes Democrats look horrible in the eyes of the American people. It’s energizing Republicans, creating an issue that every faction from the Tea Party to the Establishment can agree upon, although the former will of course criticize the latter for being insufficiently worked up about it. Long after rank-and-file Democrats have completely forgotten about this “big win,” it will be bringing people into Tea Party rallies. It also gives the Republicans a remarkably straightforward vehicle for requesting a Senate majority from the electorate: If you don’t want the people who dumped ObamaCare on you to have unchecked power, you need us in the majority.
But there is one enduring prize the Democrats seized yesterday, and it was worth making fools of themselves by betraying every single thing they said about the nuclear option, and all the Bush appointments they gleefully filibustered, during the years when they were the Senate minority. They’re betting their hypocrisy is so transparent that it will become invisible, and they’ll get a pass for it, under the rubric of “hey, all politicians are hypocrites.” (Bush-era Democrats didn’t just filibuster a bunch of the Republican President’s nominations – they basically invented the practice of using the filibuster for this purpose, a bit of history you’ll notice none of them are eager to reminisce about today.)
Senator Ted Cruz (R-TX) called it during remarks transcribed by The Hill:
“The heart of this action is directed at packing the D.C. Circuit because that is the court that will review the lawless behavior of the Obama administration implementing ObamaCare,” he said.
“President Obama and the administration refuse to follow the plain text of the law, and the D.C. Circuit is the court of appeals that has been holding the administration accountable.”
Cruz said the rule change, which passed Thursday with 50 Democratic votes, “was designed to pack that court with judges that they believe will be a rubber stamp.”
For those unfamiliar with the term, “packing” the court doesn’t just mean nominating compliant left-wing yes-men and yes-women to replace retirees who were made of sterner stuff. Obama is actually adding left-wing operatives to the court, in order to dilute the influence of the remaining judges who might be less interested in supporting dictatorial executive rule.
In case you’re tempted to regard this as anything but a nakedly political move, the D.C. Circuit Court is not a super-busy venue that desperately needs three more madly-swinging gavels to keep up with the case load. As the Wall Street Journal noted last summer, the opposite is true:
One big problem: The court doesn’t need the judges. The D.C. Circuit is among the most underworked court in the federal system. Lawyers can under most statutes now bring challenges to federal agencies in either the D.C. or a local circuit. Liberals prefer the Ninth Circuit, while conservatives used to favor the Fourth but might now choose the Fifth. In any case this means fewer cases for D.C.
Last year the D.C. Circuit saw 108 appeals per authorized judge, compared to roughly four times as many on the Second and Eleventh Circuits—the country’s busiest. And the court’s workload is trending down. Even if the court had only eight authorized judges, its docket would still be among the lightest in the country.
In addition to the seven active judges, the D.C. Circuit already has six judges on senior status who sit on cases. Senior judges hear cases in regular rotation like nonsenior judges, and some of them (such as Stephen Williams) carry near-regular caseloads. The oldest judge on senior status is Laurence Silberman, who at 77 is a year younger than the average age of senior judges across the federal bench and who wrote the appellate opinion that became the landmark Heller gun-rights case.
The point is that the D.C. Circuit doesn’t need new judges to handle the workload. Congress recognized this in 2008 when it reduced the court’s authorized judgeships to 11 from 12. But even that is too many because the last time the court had a full slate of 11 active judges was 1999. In April, Iowa Republican Chuck Grassley introduced a bill that would move two of the D.C. Circuit’s judgeships to the busier Second and Eleventh Circuits and eliminate a third.
The Hill looked at other ways this move will help protect President Obama’s deeply unpopular health care law, in addition to thwarting lawsuits that might have damaged it:
The change could help Obama implement the law in other ways. It has immediately improved the chances of confirming nominees to the Independent Payment Advisory Board. The 15-member panel, one of the most controversial facets of the law, has responsibility for curbing the cost of Medicare. The administration had little hope for setting up the board before Thursday’s rule change.
The change will also give Obama more flexibility in deciding whether to replace Secretary of Health and Human Services Kathleen Sebelius, who has received a large portion of blame for the law’s botched rollout.
Prior to this week, any effort to replace Sebelius would have had to contend with the daunting prospect of moving her successor through a contentious Senate confirmation process. Now if Obama picked someone else to take the department’s helm, he or she would have a much better chance of a speedy confirmation.
That’s an interesting theory, because Kathleen Sebelius is the most manifestly unqualified public servant since… well, you know who. And You Know Who might get to thinking that he can drain a lot of public anger about the disastrous rollout of ObamaCare by encouraging Secretary Sebelius to realize that she needs to spend more time with her family. That sort of announcement is particularly easy to make during the holidays. Heckuva job, Kathy! Merry Chri…. um, Happy Non-Denominational Holiday Of Your Choice to you and your beautiful family!
If that comes to pass, Obama certainly wouldn’t want Republicans having any meaningful “advise and consent” role in appointing Sebelius’ replacement – that’s got to someone absolutely loyal to the dictator, someone perfectly in tune with ObamaCare’s guiding philosophy. Sadly, Hugo Chavez is unavailable – he would have beenperfect, and he had a great working relationship with President Obama - but with the filibuster gone, Bernie Madoff is a possibility. Whoever it might be, you can bet it wouldn’t be someone Republicans would be eager to confirm.
The Wall Street Journal took a look today at the other rich spoils Obama can grab, now that “advice and consent” on his nominations is deader than the Tenth Amendment:
They will also confirm Mel Watt as the chief regulator for Fannie Mae and Freddie Mac. Mr. Watt, who will have almost unlimited power as government conservator, will proceed to allow principal writedowns on underwater mortgages before the 2014 election. And he will begin to finance an “affordable housing trust fund” for liberal groups that dole out subsidies to Democratic voters and harass businesses with lawsuits.
Mr. Obama also hopes to limit successful legal challenges to his rule-by-regulation. The D.C. Circuit will now have more liberal judges to hear challenges to his unilateral climate-change power grab or his rewrite by fiat of the Affordable Care Act.
Another left-wing slush fund stuffed with looted taxpayer dollars? Ka-ching! Follow the money, as the old saying goes.
The Journal encourages conservatives to see a “silver lining” in the end of the nomination filibuster, because Republicans can get busy reshaping the courts to their liking once they retake the Senate majority and the White House. Harry Reid made a similar argument yesterday, when he was trying to make everyone forget about all that stuff he used to say about how the Founding Fathers regarded the minority’s advise-and-consent role as the very soul of the Republic. ”The changes that were made today will apply equally to both parties,” he insisted. ”When Republicans are in power, these changes will apply to them as well. That’s something both sides should be willing to live with, to make Washington work again.”
If by “Washington working” he means more garbage like ObamaCare, I think the American people will heartily reject Reid’s argument. But this notion of Republicans benefiting equally from the change is fanciful. Reid didn’t mean it when he made that promise, and conservatives searching the clouds for silver linings are going to step on the iron rake of partisan reality.
For starters, those silver-lined clouds are three long years of Obama lame-duck dictatorial rule away. President Obama’s remarks yesterday made it sound like he views the nuclear option as the beginning of a process to weaken the minority, not the end.
If there’s one thing everyone should understand by now, it’s that Democrats are ambitious and brutal in their exercise of power, while Republicans tend to be timid. The media will pitch in to keep it that way. Remember, the last time Republicans gained a Senate majority, the airwaves were filled with deafening demands for them to share power with Democrats and respect the divine will of the minority. That’s going to happen again, beginning the day after the 2016 elections, if Republicans win again. If the Republican President wins in a Reaganesque landslide, the next day’s headlines will read “Narrow Republican victory means bipartisanship will be crucial to serving the interests of deeply divided electorate.”
Yes, it will be astonishingly hypocritical, and people like me will have a field day pointing out that nothing of the sort was said when a Democrat President and Senate ran wild with nakedly partisan power grabs. But the media will do it anyway, and it will probably work.
Speaking of hypocrisy, I would not place any heavy bets against Democrats restoring the filibuster right before they get swept out of power in the Senate. Look at all the nonsense they’re spewing about gridlock crises and the terrifying menace of GOP obstructionism today. They’ll announce that the temporary crisis is past, so it’s important to restore the advise-and-consent role of the minority. They’ll dust off all the quotes from 2005 that no one in the mainstream media dares to confront them with today. It’s possible the Democrats could even leave the new rules in place for a while after losing the Senate in 2014, and make their big plea to restore the beating heart of democracy right before the 2016 elections. With muscular assistance from the media, they might be able to get some of the more wobbly Senate Republicans to go along with that. Stranger things have happened.
But even if the new rules are left in place, there’s no way Republicans will be allowed to use it the way Democrats do. Any Republican who thinks he could get away with running the Senate like Harry Reid does is delusional. The Republican version of Reid would be one of the most well-known and widely-hated politicians in America, a regular character in savage late-night comedy routines and entertainment programs. No Republican president will ever be allowed to fill the courts with rock-ribbed conservatives, confirmed on straight party-line votes. Two months into such an Administration, there would be violent demonstrations in the streets, and Big Media would be running dark front-page stories about the rise of a dark new imperial tyranny, pinning every bit of political anguish on the Republican leadership’s refusal to seek the bipartisan consent of the noble Democrat minority on confirmations.
Maybe that’s the world we live in now, but please, let’s be realistic about the dearth of silver linings in the dark clouds. Republicans should be entirely focused on pointing out the dark clouds to voters, and talking about the storm that will soon break from them.