After Harry Reid, the GOP Shouldn’t Unilaterally Disarm

Orrin G. Hatch, C. Boyden Gray WSJ

After the 2006 midterm elections delivered control of the Senate to the Democratic Party, incoming Senate Majority Leader Harry Reid declared that it was “time for bipartisanship, it’s time for open government, transparency, and it’s a time for results.”

Eight years later, we know all too well what those “results” turned out to be—and they did not include bipartisanship, openness or transparency. The Democratic Party’s opaque, aggressively unilateral approach to government spurred voters to return the Senate to Republican control this week.

In preparing to lead, Senate Republicans must not repeat the Democratic majority’s excesses. Instead, our party must now begin the hard work of repairing much institutional damage. After six years of disregarding its constitutional responsibilities, the Senate must once again become a forum for meaningful deliberation and must stand as a true check and balance against executive-branch overreach.

Specifically, the new Senate must begin by restoring the twin pillars of the institution’s deliberative character: full debate and an open amendment process. Sen. Robert C. Byrd described those two institutional safeguards—open debate and amendment—as bulwarks that ensure “the liberties of the people will remain secure.” In the end, the Senate’s procedural safeguards exist not to protect individual senators, but to preserve Americans’ liberty.

But that fundamental goal—protecting liberty—counsels against blindly returning to the prior status quo. Some bells cannot be unrung. Chief among these is Sen. Reid’s decision to invoke the “nuclear option” to strip minority senators of their ability to filibuster judicial nominees.

The nuclear option allowed President Obama and his allies to reshape the judicial branch dramatically to suit their far-left agenda. And the Democrats were not shy in boasting of their achievement. This summer, after a panel of the U.S. Court of Appeals for the D.C. Circuit struck down the administration’s efforts to extend subsidies to the federal ObamaCare exchange—in clear violation of the plain words of the Affordable Care Act and the stated intent of its architects—the newly minted majority of Democratic appointees on that court voted to rehear the case “en banc.” Sen. Reid announced that the “simple math” of the D.C. Circuit’s new majority of Democratic-appointed judges would serve to “vindicate” Democrats’ use of the nuclear option, presumably by preserving the administration’s signature legislative achievement.

Similar effects are seen throughout the federal courts. As the New York Times reported on Sept. 13, “judges appointed by Democratic presidents” now “considerably outnumber judges appointed by Republican presidents,” and that “advantage has only grown since late last year when [Democrats] stripped Republicans of their ability to filibuster the president’s nominees.” Liberal legal commentator Jeffrey Toobin declared in the Oct. 27 New Yorker magazine that the nuclear option’s sudden transformation of the federal judiciary has “cemented Obama’s judicial legacy.”

It will fall to the next Republican president to counteract President Obama’s aggressive efforts to stack the federal courts in favor of his party’s ideological agenda. But achieving such balance would be made all the more difficult—if not impossible—if Republicans choose to reinstate the previous filibuster rule now that the damage to the nation’s judiciary has already been done.

To restore the rule now, after Mr. Obama has installed his controversial judges, would cement a partisan double standard: When Democrats control the White House and Senate, judicial nominations need only 50 votes; but when Republicans control both, judicial nominations require 60 votes, allowing Democratic minorities to block Republican nominations.

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