In 2005, Senate Republicans floated the idea of altering Senate rules to eliminate the filibuster for judicial nominees. The proposal, dubbed the nuclear option, involved breaking Senate rules to change Senate rules. (The rules require a two-thirds vote for rules changes, but the nuclear option changes the rules by simple majority.) Democrats fought back against it furiously. Harry Reid led the fight, saying on the Senate floor: "I would never, ever consider breaking the rules to change the rules." Well, adjust your clocks to "never." Reid is now poised to execute the nuclear option.
Reid is willing to gut the filibuster at the behest of union bosses who want to keep the National Labor Relations Board (NLRB) stacked with corrupt union lawyers who will continue to rig the rules to make it easier to force workers into unions. Even worse, the specific NLRB nominees Reid wants to break Senate rules to approve were already illegally appointed by President Obama.
The same media that was howling when Republicans considered the nuclear option are tying themselves into knots to justify it now that Democrats are in control. Consider this astonishing deception from NBC News: "The NLRB nominations have been pending so long that President Obama used so-called recess appointments -- appointing board members while the Senate was out of session -- to allow the board to function."
"Pending so long"? President Obama named his NLRB nominees on December 14, 2011 and installed them via putative recess appointment on January 4, 2012. That's 21 days. Some of the days were, obviously, major holidays. The nominees never filled out questionnaires or even underwent background checks. They didn't meet with any Senate Republicans, who nonetheless are blamed for obstructing them.
"While the Senate was out of session?" No. The Senate was in session; Senator Ben Cardin had gaveled in the new session of Congress just the day before.
D.C. Circuit Court Chief Judge David B. Sentelle wrote: "An interpretation of 'the Recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction."
The Supreme Court is almost certain to agree later this year.
You would think the Senate would, as an institution, recoil at the prospect of being effectively denied its constitutional prerogative of advice and consent. But for Senate Democrats, partisanship and dependence on union political muscle trump that concern.
Phil Kerpen is president of American Commitment, a columnist on Fox News Opinion, chairman of the Internet Freedom Coalition, and author of the 2011 book Democracy Denied.
American Commitment is dedicated to restoring and protecting America’s core commitment to free markets, economic growth, Constitutionally-limited government, property rights, and individual freedom.
Washingtonian magazine named Mr. Kerpen to their "Guest List" in 2008 and The Hill newspaper named Mr. Kerpen a "Top Grassroots Lobbyist" in 2011.
Mr. Kerpen's op-eds have run in newspapers across the country and he is a frequent radio and television commentator on economic growth issues.
Prior to joining American Commitment, Mr. Kerpen served as vice president for policy at Americans for Prosperity. Mr. Kerpen has also previously worked as an analyst and researcher for the Free Enterprise Fund, the Club for Growth, and the Cato Institute.
A native of Brooklyn, N.Y., Mr. Kerpen currently resides in Washington, D.C. with his wife Joanna and their daughter Lilly.
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