John Feehery: Speaking Engagements

Don’t Worry About the Senate Going Nuclear – Republicans Will Have the Last Laugh

Posted on November 21, 2013
Harry Reid

Senator Reid's Proposal to Change Filibuster Rules Was Approved Thursday



The traditionalists in the Frist office argued against going nuclear in the middle of Bush Administration.

Senate Democrats had held up a passel of Bush Judicial appointees and the Majority Leader had grown tired of their games.   He wanted to push for a so-called “nuclear option,” to fundamentally change the nature of the Senate to get the President’s guys (and women, as it turned out) on to the Federal bench.

One previous casualty of the Democrat’s filibuster games was a brilliant Hispanic lawyer, Miguel Estrada.  Estrada was a nightmare for partisan Democrats.  He was judged well-qualified by the American Bar Association, he was conservative, he was from Honduras, and because he wasn’t previously a judge and because he didn’t do much public writing, he didn’t have a track record for the Democrats to attack.

If Bush had succeeded in getting him onto the District Court bench, it was only a short time before the President would nominate him to the Supreme Court.  The last thing the Democrats wanted was to have a brilliant, Hispanic and conservative judge be appointed to the highest court by a Republican President.

So they filibustered the nomination.  Despite the fact that Estrada had a clear majority in the Senate, the Republicans couldn’t break the filibuster.  His nomination was the first in history to be successfully filibustered, and after 7 times trying to break that procedural logjam, the Republicans gave up and Estrada went back into private practice.

In retrospect, Frist should have gone nuclear to get Estrada onto the Court so that he could eventually get to the Supreme Court.  Of course, had Frist done that, the Democrats would have taken advantage of that rules change to push through countless numbers of nominees and judicial appointments that had been slowed down by the pre-nuclear rules of the Senate, under the Obama regime.

For the first twelve decades of its existence, the Senate operated without a cloture rule.  That meant that the any Senator or group of Senators could speak on the floor as long as they wanted and filibuster a piece of legislation.

Former House Speaker Henry Clay tried to break a filibuster in 1837 with a majority vote in a debate over the reauthorization of the Second National Bank of America (President Andrew Jackson was opposed to that bank), but he backed down after it became clear that the opponents to his position would make the Senate a very hard place to work.

Liberals are the ones who seemed to have the least use for the rights of the minority.   It was Woodrow Wilson who first pushed through Senate Rules changes that created cloture.  He wanted the Senate to approve his Treaty of Versailles in 1919, and he wanted his side to adopt a cloture provision to bring that Treaty to a vote.  As it turned out, it didn’t matter, because his Treaty was rejected, but a new way to stop debate was now what ruled that Upper Chamber.

Wilson’s progressives put the voting threshold at 2/3rd of those who were elected and currently serving in the Senate, and that ruled stood up for close to six decades.  But in the aftermath of the Watergate scandal, liberals once again changed the rules of the Senate, changing that threshold to its current 3/5ths.    And now, pushed hard by liberal interest groups, the Senate Majority Leader has changed the rules once again, moving away from principle of accommodation of minority rights to a principle of majority rules.

The 60 vote threshold is not sacrosanct.   It’s nowhere in the Constitution.  It’s not mentioned in the Bible and it is not one of the 10 Commandments.

But it has been part of the tradition of the Senate since the 1970’s.

Up until now.

My friends who work in the Senate are horrified at what Senator Reid did to change the rules.  They believe that the Upper Chamber will never, ever be the same.

And of course, that is true.

But the Senate always changes, always adapts, sometimes slowly and sometimes all at once.

And what goes around, comes around.

The Senate majority can’t change the rules once it gets back in the minority.  And if history is any judge, at some point, maybe in the near future, the majority will become the minority.

And if history is any judge, the Senate and the White House will, at some point in time, fall in the hands of the Republicans.  And when that happens, the Democratic minority will have no power to stop that President from appointing whomever they want to whatever position they want.

Miguel Estrada would be a Supreme Court Judge had the Reid rules been in effect a decade ago.

Who knows which conservative will be the benefit of this rules change, but we do know it will be somebody the liberals really, really hate.

And I suppose that is how the Republicans will get the last laugh.