1/5/17 Nuclear Options

Senate Minority Leader Chuck Schumer (D-NY) recently said he regrets the 2013 rules change in the Senate that does away with the 60 vote super-majority needed to approve Cabinet and court appointments, excluding the Supreme Court. I’ll bet he does. When then Senate Majority Leader Harry Reid was threatening the nuclear option in 2013, and it appeared that Reid would forge ahead and successfully change the Senate rules, the then Senate minority leader, now Senate Majority Leader, Mitch McConnell warned that the Democrats would regret the rules change, and regret it sooner than they thought.

One thing is certain in politics: things change. The number of things that can change is incalculable, each little change precipitating other changes until a groundswell of momentum becomes a huge breaking wave crashing over your beach picnic, which you had planned just a bit too close to the water’s edge, not thinking of the tide, which was quite a bit lower when you laid out your blanket and spread your picnic goodies. Things change.

Your once tasty food changing to salt-water laden sandy refuse was not in your plans. You perhaps should have planned better. Failure to see all the possible repercussions of our plans, or seeing them and ignoring the warnings are all part of the human condition. Schumer was not exempt. We are not exempt. We are not clairvoyant, but we are reckless, particularly when we are carried afloat on a rapidly moving current of public political momentum, one that seems so wise to us at the time.

Crestfallen, I looked at the soggy mess of a sandwich in my hand. My tongue labored to swipe the sand from my mouth. I spit the entire humanly inedible mess out on the beach, kicking sand over it, knowing that at least the fiddler crabs would enjoy what was left there, ruined by the Gulf of Mexico’s nefarious intentions, or my lack of proper planning; you decide which.

The House of Representatives is the place for emotions and passionate politics to run wild in government. The House was always set up to operate on a simple majority vote. The Senate is the place where government is told, “Whoa! Wait a minute. Slow down there. Let’s not be hasty. Let’s think about this before we go off half-cocked.”

Having unlimited debate, the Senate is the place for the filibuster, requiring 60 votes to invoke cloture and proceed to a vote on the Senate floor. It has worked as a means of checking majority power in the past. It has also not worked so well in the eyes of many at times, most particularly those passionate political players ardently trying to move their agenda through congress. The Senate is the place where more than a simple majority is required, where the potential tyranny of the majority can be checked, allowing passions to cool down, stopping a mob before it becomes a mob, or preventing a strategic error arising from a tactical decision. It is always good to stop a mob from making a terrible mistake, saving the mob from itself, even more saving the mob’s focus. I abhor mobs. You should, too.

In a speech from the Senate floor in 2005, Shumer gave a persuasive argument in favor of keeping the filibuster in place when the the nuclear option was being considered. I like the text of his speech then. He gives very reasonable arguments on the dangers of changing the Senate rules to allow a simple majority vote.

In expressing his regret of the rules change in 2013, Schumer stated that he had argued against it, which is an indication that he is perhaps recalling his 2005 speech, and he indeed may have argued against parts of the 2013 rules change, yet he still voted in favor of it. I won’t call this disingenuous, though I will point out that it is consistent with a politician’s typical response of, “I was for it before I was against it,” or vice versa, as the situation may require. Everyone gets to change their mind, and everyone in politics plays angles to gain or keep power, or consolidate it.

Keep in mind that over the last two centuries, the Senate’s rules have changed, and the recent changes are no indication that they weren’t considered before, or even used. The Senate has, on more than one occasion, suspended the rules and allowed a simple majority vote on a specific issue, but 2013 was the first time there has been a general rules change. How the Senate votes is up to the Senate to decide for itself, since the Constitution is mostly silent, excepting treaties, which are required by the constitution to have a 2/3 vote to pass. This is as it should be since treaties are long-term commitments which survive administrations. They are best considered carefully.

Now Democrats are doing much complaining about President-Elect Trump’s cabinet picks, yet there is very little they can do about it, having changed the rules themselves. The Republicans are threatening to expand the rules change to include Supreme Court appointments, which may just be political posturing. I hope so. I, like the Schumer of 2005, would argue against changing the Senate rules to allow a simple majority on a Supreme Court appointment. Like a treaty, the Supreme Court is a long-term policy decision. It should be deliberated carefully. Just as it is the Senate’s job to advise and consent, it is the president’s job to make nominations that can actually get through the Senate.

I was a great admirer of the late Justice Antonin Scalia, but I do not want an entire court of Scalia clones. I don’t think anyone wants that. We, as a nation, need to hear opposing voices. We need to hear from all sides. We need to weigh a thing carefully before we judge it. We should expect that of ourselves. We certainly should expect that of our judges.

And the Senate and opposition party obstructionism?….I think that when our government is obstructed from doing anything, it is prevented from doing the wrong thing. The right thing, or at least the right enough thing, the important enough thing, will get some support from across the aisle. If your Senator or Congressman will not support the right thing, then you should work to see that they are forced to retire by your right of suffrage. Send in the right ones. Perhaps the right ones are not the ones who have made a life-long career out of Washington. We choose, then we live with our choices. We do not get to choose, then alter the past hoping to obliterate the effects of what we have chosen.

In 2005, after the Republicans returned to Senate majority with Bush43’s second term, Mitch McConnell said, “To correct this abuse, the majority in the Senate is prepared to restore the Senate’s traditions and precedents to ensure that regardless of party, any president’s judicial nominees, after full and fair debate, receive a simple up-or-down vote on the Senate floor. It is time to move away from advise and obstruct and get back to advise and consent.”

IN 2013, after The Reid Rule, invoking the Nuclear Option, McConnell said, “…to my friends on the other side of the aisle: you’ll regret this, and you may regret it a lot sooner than you think.”

His friends on the other side of the aisle are regretting it now. But what will McConnell’s position be? We have no way of knowing, other than he is capable of complete flip-flops on this issue, depending on the political whims of the moment, cloaking the power shifts and plays in the words of statesmanship, like any good politician should.

Here’s a fitting rules change proposal for the Senate, one we may all be able to support: The Senate Majority and Minority leaders, their aides, staffers, and politicos must wear flip-flops while on the senate floor.

They should like this. They seem so comfortable with them. If it works well, it could be extended to the entire Senate.

Flip-flops are much more comfortable than sackcloth and ashes.

©2017 Mississippi Chris Sharp

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