Harry Reid’s Ring of Power

“To keep it hid and not to use it. You are a new people and a new world to me. Are all your kin of like sort? Your land must be a realm of peace and content, and there must gardeners be in high honour.” – Faramir, The Two Towers, J.R.R. Tolkein

The expansion of government is both accelerative and fracturing. As the power of Washington grows, the incentive to possess and wield it increases. Unlimited capacity in the hands of the wrong people spells catastrophe, and even when the right people come to power, they are driven to use, rather than constrain, authority accumulated by the previous administration. This creates a volatile political see-saw, and makes an unstable foundation for enduring institutions. Many people consider Donald Trump to be the wrong people par none, but it is important to note that any fear of him stems not from his personal characteristics, but because he will be vested with all the powers of the presidency. These powers did not spring from thin air, but were gradually erected as institutional checks on the presidency were torn down. If a victorious opposition to Trump is to create a realm of peace, and avoid setting the stage for subsequent authoritarians, it must comprehend how he has been empowered.

After President Obama’s re-election in 2012, Republicans, then the minority in the Senate, refused to vote for several of his executive-office appointments and judicial nominees. The senate has historically required a supermajority of 60 senators to approve executive appointments, though changes to traditional senate rules can be made with a simple majority of senators. The ability to alter appointment approval thresholds with a simple majority vote, known as the nuclear option, had been threatened in the face of past minority obstruction, but never used. Democratic Majority Leader Harry Reid argued that in the face of unprecedented Republican opposition, a rule change was the only way to advance Obama’s progressive agenda. Instead of accepting that they could not accomplish all they wished to, Senate Democrats altered the threshold for executive appointments, ending a two hundred year tradition of resistance of majoritarianism.

NASA’s director is appointed by the president, and approved by congress. Under Obama’s presidency, NASA increased spending on earth sciences, attempting further our understanding of climate change. Trump has promised to slash its earth science budget and hand responsibility for climate oriented missions to the National Oceanic and Atmospheric Administration. If you are a voter concerned about climate change, you may not like this shift, however, because of Harry Reid’s rule change, Democrats cannot force Trump to appoint a NASA director with even marginal interest in earth sciences. If you are concerned about something else, remember that the Secretaries of Defense, State, Environmental Protection, and many more are appointed in the same way.

Supreme Court nominees can still be filibustered, requiring a 60 vote threshold for approval, however, this too can be changed by simple majority vote. Reid’s elimination of the appointment filibuster has been cited as precedent for its elimination with regard to Supreme Court nominees by both the left and right. Expecting a Clinton win, Tim Kaine threatened use of the nuclear option in the face of expected republican opposition to her SCOTUS nominees, while Johnathan Adler, a law professor at Case Western University, writes “Given Reid’s decision to go nuclear in 2013 — and threat to go further, if need be — there is no reason for Senate Republicans not to eliminate the filibuster for nominations once and for all”. Expansions of majority power both transfer losslessly to new majorities, and pave the way for the further expansion of their authority.

Donald Trump the man might be a short-fused reactionary, but he is not a naturally licensed tyrant. He inspires fear because he is the president, supported by a slight senate majority, a position empowered tremendously by those who last held it. While they may wish this power away, they cannot rebuild the norms they have toppled. Mitch McConnell is now the only senate check on Trump’s appointment ability, Harry Reid may have crafted the ring of unlimited appointment power, but it is no longer in his hands. When one side’s winning grants it carte blanche authority the loser, all factions will be less concerned with accepting stable transitions of power than stopping their opponents at all costs. As minority rights are weakened, democratic solidarity and the rule of law weaken as well. In response to potential Republican use of the nuclear option, Albany Law School professor Peter Clark has suggested refusing to accept the decisions of Trump’s Supreme Court pick as precedent, a move which would drastically destabilize the American legal order. Regardless of your political stance, if you are to secure your rights in the long term, you must resist the urge to exploit inherited power. Remember that at some point that power will be wielded by your enemies, and toss it into the volcano.