11/24/2013 09:11 pm ET Updated Dec 06, 2017

BOTH SIDES NOW : Reid Ends GOP Veto of POTUS Picks

By Mark Green

Ron Reagan & David Frum debate whether ending filibusters over presidential appointments was a "power grab" or a pro-democracy move to reduce dysfunction? And is the Obamacare fight about health care or "the promise of liberalism"? Then: the Kennedys, the Reagans & assassination.


There's an unending debate about majority rule versus minority rights. But basically, when process strangles democracy, the process has to change -- like the Articles of Confederation in 1787 and Senate filibuster rules over presidential appointments in 2013. Since when did "advice and consent" morph into a super-majority rule stymieing all presidents?

On Judicial & Executive Nominations. We listen to the N-word -- as in nullification. Ron Paul thinks his party should "nullify" Obama presidential nominations while Senator Elizabeth Warren condemns "naked attempts to nullify the presidential election."

Frum sees the rise in Senate filibusters as something that's been "getting worse in every cycle," that both parties do, and that Democrats pioneered. He argues that what Reid did is an obvious "power grab" because it benefits his party's agenda. Yet on the merits, David favors only a majority vote for executive branch nominees (not judicial) since new presidents should be allowed to fill out their government unless some obvious misfit is named and then a majority can vote no (see John Tower).

Ron's not so even-handed. Noting how there have been more judicial filibusters in Obama's five years than the previous 60, he condemns a practice that "damages the ability of any president to function... regulatory agencies need chairs, cabinets need secretaries, judicial vacancies need judges." Since Minority Leader McConnell picked this fight by refusing all recent DC Appeals courts nominees, he can't whine now that he's lost this fight.

Host: Reid outboxed McConnell because the latter turned a last-resort filibuster process into a first-resort routine that the Founders would have condemned. Especially in the context of a body based on the grossly undemocratic two senators a state (so Wyoming per capita has 70 times the representation of California), this promiscuous use of the filibuster means that some 20 states with 40 votes and 10 percent of the population could block a nationally elected president from fulfilling his Article II responsibilities to appoint his government and the judiciary. Why should a minority of one chamber in one branch get to shutdown the functioning of another branch? We're not the United States of Utahs... as Alexander Hamilton recognized in Federalist 22 (courtesy of Rick Hertzberg): "justice and common sense [will lead] large states to revolt from the idea of receiving the law the smaller."

What about the argument that a reduced DC Circuit workload justifies fewer judges? 'Isn't that convenient,' as The Church Lady would say, coming just when a Democratic president has nominated three qualified lawyers to that bench. If hearings show a decline in workload somewhere, then unpack some courts prospectively rather than during a presidency of the other party (see rules on prospective congressional pay increases and presidential term limits enacted in 1947 for whoever the next president would be).

Will Democrats will come to regret this vote? "One in the hand is worth two in..." Democrats know for sure there will be scores of openings in next 3+ years that Obama can constitutionally fill... and while it's politically possible that the GOP will someday control both the White House and Senate, a) it's not likely soon, b) the GOP could still then unilaterally change the rules to their advantage and, in any event, c) the straw that broke the Dems back now was the rejection of the super-qualified Patricia Millett to the D.C, Circuit the same month that the barely confirmed "liberalism is slavery" Janice Rogers Brown ruled that corporations have a right of religion.

On Obamacare's Early Ills. We listen to Charles Krauthammer predict "the end of liberalism" if the Affordable Care Act fails... which RNC chair Priebus says will happen electorally when the GOP "tattoos it on the forehead of every Democrat running" in 2014.

Ron scoffs at this excessive rhetoric. What does "fail" mean since many with pre-existing conditions will now get coverage, millions of children will be on their parents' policies, and insurers can't drop people when they get sick. "And what is the Republican alternative?"

David takes a more macro view of Obamacare, describing how it covertly cross-subsidizes poorer enrollees. Hence there are both winners and losers, contrary to the president's misleading campaign promises.

Ok, but what's the ratio of winners to losers? According to the leaked "GOP Playbook" to the New York Times, Republican officials are only supposed to talk up anecdotes about those who pay more for less coverage. Yet independent analysts show some 30 million will gain coverage or see it expanded while two million may pay more. Isn't better than 10-1 a success? David argues that the 10-1 ratio is a trick that ignores how the group market (employer health care) will likely see reduced benefits.

Conclusion: Obama overpromised and the GOP is engaged in misleading anecdotage. By March 1, 2014, when the individual mandate kicks in for those who haven't obtained coverage through the exchanges, we'll know if Krauthammer-Preibus or Obama-Reagan have been vindicated.

On the Cheneys' Gay Divisions. There's both sadness and schadenfreude over the Cheney's family feud about gay marriage.

David regrets that Liz chose to "be more doctrinaire than she probably is for political reasons, especially since she's going to lose anyway." Ron notes that in such intra-family disputes -- like his own with brother Michael over My Father at 100 -- can be more Oedipal than political. In the context of polling trends on gay rights, we then discuss why the GOP won't even allow a House vote on ENDA (Employment Non-Discrimination Act) to start to appeal to younger non-homophobic voters. Don't they want to win national elections?

Frum makes an interesting tactical point: it's good Republican Caucus management for Speaker Boehner to put off a vote for a few years to not allow Democrats to split the Caucus between live-and-let-live libertarians and more religiously fundamentalist conservatives.

QTs: Cell phones, Rob Ford, JFK redux. There's complete consensus on opposing the FCC proposal to allow cell phone use in the confined space of an airplane's cabin.Frum: "Give me wi-fi and silence and I'm happy."

A Daily News cartoon caption had a husband saying to his spouse: "Let's lock George Zimmerman in a room with Rob Ford and see what happens." David, who's the BothSidesNow Canadian correspondent, is asked if he agrees with Bill Maher that Ford has a certain in-your-face, unPC charm. Not at all, he responds, since among other problems of addiction and idiocy, Ford is associated with organized crime. Oh.

On the 50th commemoration of Kennedy's assassination, Frum concludes that he was only a mediocre president when cut down. On the other hand, Robert Dallek in an NYT op-ed that day explains that JFK's avoidance of nuclear war during the Cuban Missile Crisis, introduction of the civil rights act as a "moral imperative," and stirring calls to public service were distinguishing... and, presumably after beating Goldwater, he would have done far more.

A candid Ron chats about how his father was "not a big fan of JFK or the Kennedys [as a political matter] but he grew closer to the family after he was shot in March of 1981." (Interesting: in a CNN poll of public approval of recent presidents, #1 was Kennedy at 90 percent and #2 was Reagan at 78 percent.)

Mark Green is the creator and host of Both Sides Now.

You can follow him on Twitter @markjgreen

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