By John Fund
Monday, April 10, 2017
Neil Gorsuch was sworn in as a Supreme Court justice
today, but it has come at a cost. The ability to filibuster a future such
nomination died last week as the GOP Senate triggered the “nuclear option” and
ended the practice. Democrats are crying foul over a “stolen” Supreme Court
seat: Their tried to filibuster Gorsuch as payback for the Republican refusal
to advance the nomination of Obama appointee Merrick Garland last year.
But that’s not quite the way Tom Daschle sees it. He was
the Senate majority leader from 2001 to 2003. This weekend, Daschle
admitted in a podcast with RealClearPolitics’ Carl Cannon that Democrats
are more to blame than Republicans are for the destruction of “institutional
pillars” in the Senate. He said that he finds the “situational ethics”
surrounding Senate confirmations to be deeply troubling and destructive of the
institution. Daschle appeared to chastise fellow Democrat Chuck Schumer, the
current Democratic minority leader, for blaming only Republicans for the
Senate’s hyper-partisanship.
“Today is just amazing — the symmetry that exists between
those who believe that it’s wrong today but to believe in doing it before,” Daschle
told Cannon. “What I would fear the most is a lack of respect and appreciation
of the institution itself.”
Daschle wasn’t done. He went on to say:
Unfortunately, Democrats have far
dirtier hands when it comes to the erosion of the institutional pillars of the
Senate than Republicans going all the way back. . . . The whole budget process
was a Democratic product, and that was in my view a procedural disaster. Then
we lowered the threshold from 67 to 60. That was a Democratic effort. And then
in 2013, we took it away completely for nominations, and that was Democratic.
So, Democrats who may lament this institutional deterioration, I think there’s
a lot of history here that can’t be explained away.
When he mentions the deterioration of the budget process,
he appears to be criticizing Harry Reid, who as Senate majority leader under
President Obama declined to ever pass a real federal budget. Instead, Reid
chose to run the government by “continuing resolutions.”
Of course, Daschle doesn’t have completely clean hands in
all this. In 2003, when Daschle was the minority leader, Democrats mounted
filibusters of several George W. Bush judicial nominations. Before then, no
purely partisan filibusters of a potential judge had ever been mounted (the
filibuster against LBJ appointee Abe Fortas in 1968 was bipartisan). Chief
among the 2003 filibusters was the one against GOP lawyer Miguel Estrada for
the D.C. Circuit Court of Appeals. Estrada, a Honduran immigrant, was opposed
by Democrats, who admitted in a leaked memo that they feared Estrada would
become the court’s first Hispanic judge appointed by Bush.
After two years of delays, Estrada finally withdrew his
nomination in disgust with the process. He remains a little bitter, telling the
National Law Journal in March, “I
would never accept a job that requires Senate confirmation or, for that matter,
willingly place myself in any situation (e.g., a hearing room) in which
convention requires that I be civil to Chuck Schumer.”
While he has conveniently forgotten his own role in the
destruction of the filibuster against Supreme Court nominees, it is refreshing
to see someone with the stature of Senator Daschle call out his own party for
having the larger share of hypocrisy when it comes to the Senate’s dysfunction.
Nor is that dysfunction limited to confirmation votes.
Daschle says he is an old-fashioned critic of legislative “majoritarianism,” by
which parliaments in Europe override the minority and ram through laws with
little consultation. “I believe in protecting the rights of the minority,” he
told Cannon. “I also hold out hope for bipartisan agreement.” But he lamented
that he isn’t likely to see much of that soon. He noted that there used to be
two tables in the Senate dining room reserved for bipartisan groups of senators
to eat and get to know one another. A little while ago, they were removed from
the room because no one was using them.
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