An Outbreak of Lawlessness | National Review Online


For all the gnashing of teeth over the lack of comity and civility in Washington, the real problem is not etiquette but the breakdown of constitutional norms.

Such as the one just spectacularly blown up in the Senate. To get three judges onto a coveted circuit court, frustrated Democrats abolished the filibuster for executive appointments and (non–Supreme Court) judicial nominations.

The problem is not the change itself. It’s fine that a president staffing his administration should need 51 votes rather than 60. Doing so for judicial appointments, which are for life, is a bit dicier. Nonetheless, for about 200 years the filibuster was nearly unknown in blocking judicial nominees. So we are really just returning to an earlier norm.

The violence to constitutional norms here consisted in how that change was executed. By brute force — a near party-line vote of 52-48. This was a disgraceful violation of more than two centuries of precedent. If a bare majority can change the fundamental rules that govern an institution, then there are no rules. Senate rules today are whatever the majority decides they are that morning.

What distinguishes an institution from a flash mob is that its rules endure. They can be changed, of course. But only by significant supermajorities. That’s why constitutional changes require two-thirds of both houses plus three-quarters of the states. If we could make constitutional changes by majority vote, there would be no Constitution.

As of today, the Senate effectively has no rules. Congratulations, Harry Reid. Finally, something you will be remembered for.

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