From Joe Hallett’s column today in The Dispatch:
About five years ago, Kentucky Republican Sen. Mitch McConnell tried to change the Senate’s nearly century-old filibuster rules.
Back then, Republicans held a majority in the Senate, and they cringed at threats by the Democratic minority to block President George W. Bush’s appointees to the U.S. Supreme Court by using the endless debating procedure.
But if McConnell had succeeded, Senate Republicans might not have use of the filibuster now to block President Barack Obama’s health-care plan.
“God, that was a dumb idea,” McConnell said, chuckling, during a recent interview with The Washington Post.
He and other Republicans can thank, in part, former Sen. Mike DeWine for preserving the filibuster and ensuring that Bush’s conservative nominees to the Supreme Court, Chief Justice John Roberts and Justice Samuel Alito, won confirmation.
DeWine, who had a reputation for working across the aisle to get things done, had joined six other Republicans and seven Democrats to form the so-called “Gang of 14.”
Their compromise made it more difficult for the Senate to kill judicial nominations by using the filibuster. Conservatives were disappointed, because they wanted the Senate’s GOP majority back then to use their muscle to change the rules and confirm their favorite judges by simple majority rather than the 60 votes required to overcome a filibuster.
Had conservatives gotten their wish, Senate Republicans now would be unable to stop Obama’s agenda, including the “Obamacare” they dread so much. But rather than hail DeWine for preserving the filibuster and ensuring that Roberts and Alito were confirmed, many on the far right vilify him for being a turncoat.
Why is Hallett writing about this? What made him take a break from supporting higher taxes and regurgitating stale political news? I know he can’t stand conservatives, but this discussion feels contrived, as if DeWine’s campaign should list it as an in-kind contribution for free newspaper advertising. It also mirrors what DeWine says during county GOP endorsement meetings.
First of all, both the House and the Senate passed health care bills. Until the election of Sen. Brown (the better of the two Browns), Democrats had a filibuster-proof majority. Republicans were helpless, and only DEMOCRATS were standing in the way of the Obama agenda. In fact, they could still easily pass socialized health care now, using reconciliation and a simple majority. (Some Ohio Congressional Democrats, such as Rep. Mary Jo Kilroy and Sherrod Brown, are pushing hard for this strategy.)
And secondly, though the filibuster is extra-constitutional and has a checkered history, I support it because, as a conservative, I’m a big fan of gridlock and stalling legislation in general. America is a republic (not a democracy), and as more power is consolidated with the federal government, having extra protections against the “tyranny of the majority” is healthy.
However, the problem during the Bush administration was a question of the Appointments Clause (Article II, Section 2), which calls for a simple majority vote for the Senate to “advise and consent” on judicial appointments. Not all uses of the filibuster raises this same sort of serious constitutional conflict about the number of votes needed to do something.
As the battle raged on over President Bush’s judicial nominees, litigation could have been filed to force the Senate Majority to respect Article II, section 2…. Or there could have been debate over changing the Senate rules just for when filibusters conflict with the legitimate rights of the executive branch.
However, then-Sen. Mike DeWine was in no mood for a tough political fight, and instead joined the “Gang of 14″ to avoid this issue entirely. And as he explained to Republican State Central Committee member John Becker last week:
During the “Gang of 14″ discussion, I asked him about Miguel Estrada, Charles Pickering, Carolyn Kuhl, and Fourth Circuit Court nominee Terrence Boyle. [DeWine] defended and explained his position. Although he firmly believes that he did the right thing, he confessed that a number of nominees “got thrown under the bus.”
Translation: Brilliant legal minds (listed above) were prevented from becoming federal judges because DeWine and the other 13 prevented Republicans from starting a political fight in which the Constitution was squarely on their side.
We have no idea how horrible our lives may have been if DeWine was never born. But we know for certain that DeWine’s compromise stopped a number of conservatives from accepting appointments that they were more than qualified for.
But now, Mike DeWine gets to look back fondly on his weak-kneed strategy and claim he stopped ObamaCare years before President Obama even took office?
If you say so, Mike.