Rules changes cut both ways

Rules changes cut both ways

In a democratic society, power shifts can make a popular decision today unpopular tomorrow.

There is much about President Donald Trump that has driven congressional Democrats around the bend. But there's one area where the president is enjoying success for which the Democrats are responsible, including retired U.S. Sen. Harry Reid and current Senate leaders Charles Schumer and Dick Durbin.

That's in the area of judicial confirmations.

But if it's true that Democrats are suffering today because they embraced an unnecessary but convenient rules change in the past, it's equally true that Senate Republicans may someday regret a recent rules change of their own.

Hardly a day goes by in Washington where Democrats don't complain that President Trump is packing the federal courts.

By that, they mean that he is making nominations to fill judicial vacancies and that those nominees are being confirmed by the Senate.

Up until 20 years ago, that was standard operating procedure, no matter which party controlled the presidency and which party controlled the Senate.

That changed when judicial nominations came to be perceived as dangerously political, an attitude that evolved as the courts began to take upon themselves the power to decide hot-button social issues rather than leave them to be worked out in compromise by the executive and legislative branches.

At any rate, during the administration of former President George W. Bush, Democrats started to routinely engage in filibusters to deny his nominees a vote. It took a three-fifth vote of the Senate (60 senators) to break the filibuster and vote up or down on a nominee.

It was controversial at the time, but the filibuster stood.

Later, under President Barack Obama, Republicans engaged in the same filibuster practice as the Democrats did under Bush. Rather than accepting that turn-about is fair play, Democrats were outraged, so outraged they used their Senate majority under Obama to abolish the filibuster for federal trial and appeals court judges.

They thought it was a great idea then. But when President Trump took office in January and had a Republican Senate to confirm his judicial nominees, the Democrats weren't so keen about their decision.

Lacking a filibuster, Senate Democrats showed signs of falling back on the so-called "blue slip" as a last means of blocking a Trump judicial nominee.

The blue slip refers to the approval senators either gave or withheld from a judicial nominee from their home state. For example, Minnesota U.S. Sen. Al Franken recently withheld blue-slip approval for Minnesota Supreme Court Justice David Stras, a man highly regarded by Republicans and Democrats there.

Sen. Franken objected to Stras because he is a Trump nominee, once was a law clerk for Justice Clarence Thomas and is regarded as having a conservative judicial philosophy, hardly adequate reasons to block an otherwise qualified nominee.

News reports indicate Sen. Franken "is the first to use the Senate tradition as a stopper" of Trump nominations. But in light of their decision to abolish the filibusters, it represents a last-ditch effort to block the executive's judicial nominations.

But Sen. Charles Grassley, who heads the Senate Judiciary Committee, recently announced that he's decided "not to honor a Senate tradition of holding up hearings for judicial nominees who aren't cleared by their own home state senators."

News reports indicate that the "blue slip courtesy" is born out of a time before nationwide communication technology when a given state's senators had access to much more information about nominees than their colleagues from the rest of the country. Grassley asserted, probably correctly, that Democrats plan to use the blue-slip tradition to replace the filibuster.

That, of course, would be an abuse of power. But it's a power that's been abused on a bipartisan basis in the past.

Republicans think eliminating the blue-slip courtesy is a good idea now. But what will they think when there's a Democratic president to make nominations and a Democratic Senate to confirm them sans blue-slip rejections from Republicans?

These decisions are predicated on short-term thinking. The Democrats saw themselves as in control of the White House and Senate and expected that circumstances to continue. So they're sorry now.

Likewise, Republicans see their situation the same now as the Democrats did then. They, too, may be sorry sooner than they think.

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