A Bill Comes Due: Reid’s Folly Becomes The Democratic Nightmare

225px-harry_reid_official_portrait440px-Judge_Brett_KavanaughIn 2010, I (and others) criticized the Democratic leadership (including then Majority Leader Harry Reid and many of the continuing Democratic senators) for their use of the “nuclear option” in curtailing the power of the filibuster. I was equally critical of Republican leaders who previously suggested such a course of action. The Democrats acted with little concern that they might ever be in the minority and need this critical power. They muscled through the Affordable Care Act on a marginal vote that cost various members their seats and passed a highly flawed bill that was plagued by problems of bad drafting and poor planning. Moreover, they secured relatively few confirmations to federal office.  The result was the final demise of the filibuster for Supreme Court nominees when the Republicans took power.  The result for the Democrats is Justice Brett Kavanaugh, who was confirmed by a 50 to 48 vote.

Kavanaugh was confirmed by the smallest margin since 1881. In 1881, Justice Stanley Matthews was confirmed in a vote of 24-23.  Matthews served as a Lieutenant Colonel in the 23rd Ohio in the Civil War under the command of Rutherford Hayes and with fellow officer William McKinley.  He also was a student with Hayes at Kenyon College.

440px-Thomas_Stanley_Matthews_-_Brady-HandyIn 1881, Hayes nominated Matthews for the Supreme Court but his close association was viewed as cronyism.  Like Merrick Garland, the Senate never acted on the nomination.  However, Matthews was then nominated again by James Garfield — leading to his narrow margin of confirmation.

Here is Harry Reid and the Democrats throwing caution and self-preservation to the winds in a move that would ultimately put Kavanaugh on the Court — and may open up a new conservative era of the Court.


283 thoughts on “A Bill Comes Due: Reid’s Folly Becomes The Democratic Nightmare”

  1. Peter Hill asked what the administration was doing with regard to healthcare. I didn’t have time before but towards the end of year one he released the following: (Since then he has added more but with Peter one has to start from the beginning and be complete. This I believe was his first executive order regarding healthcare. He has done more since, but a complete revision of our healthcare will take time.

    By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

    Section 1. Policy. (a) It shall be the policy of the executive branch, to the extent consistent with law, to facilitate the purchase of insurance across State lines and the development and operation of a healthcare system that provides high-quality care at affordable prices for the American people. The Patient Protection and Affordable Care Act (PPACA), however, has severely limited the choice of healthcare options available to many Americans and has produced large premium increases in many State individual markets for health insurance. The average exchange premium in the 39 States that are using http://www.healthcare.gov in 2017 is more than double the average overall individual market premium recorded in 2013. The PPACA has also largely failed to provide meaningful choice or competition between insurers, resulting in one-third of America’s counties having only one insurer offering coverage on their applicable government-run exchange in 2017.

    (b) Among the myriad areas where current regulations limit choice and competition, my Administration will prioritize three areas for improvement in the near term: association health plans (AHPs), short-term, limited-duration insurance (STLDI), and health reimbursement arrangements (HRAs).

    (i) Large employers often are able to obtain better terms on health insurance for their employees than small employers because of their larger pools of insurable individuals across which they can spread risk and administrative costs. Expanding access to AHPs can help small businesses overcome this competitive disadvantage by allowing them to group together to self-insure or purchase large group health insurance. Expanding access to AHPs will also allow more small businesses to avoid many of the PPACA’s costly requirements. Expanding access to AHPs would provide more affordable health insurance options to many Americans, including hourly wage earners, farmers, and the employees of small businesses and entrepreneurs that fuel economic growth.

    (ii) STLDI is exempt from the onerous and expensive insurance mandates and regulations included in title I of the PPACA. This can make it an appealing and affordable alternative to government-run exchanges for many people without coverage available to them through their workplaces. The previous administration took steps to restrict access to this market by reducing the allowable coverage period from less than 12 months to less than 3 months and by preventing any extensions selected by the policyholder beyond 3 months of total coverage.

    (iii) HRAs are tax-advantaged, account-based arrangements that employers can establish for employees to give employees more flexibility and choices regarding their healthcare. Expanding the flexibility and use of HRAs would provide many Americans, including employees who work at small businesses, with more options for financing their healthcare.

    (c) My Administration will also continue to focus on promoting competition in healthcare markets and limiting excessive consolidation throughout the healthcare system. To the extent consistent with law, government rules and guidelines affecting the United States healthcare system should:

    (i) expand the availability of and access to alternatives to expensive, mandate-laden PPACA insurance, including AHPs, STLDI, and HRAs;

    (ii) re-inject competition into healthcare markets by lowering barriers to entry, limiting excessive consolidation, and preventing abuses of market power; and

    (iii) improve access to and the quality of information that Americans need to make informed healthcare decisions, including data about healthcare prices and outcomes, while minimizing reporting burdens on affected plans, providers, or payers.

    Sec. 2. Expanded Access to Association Health Plans. Within 60 days of the date of this order, the Secretary of Labor shall consider proposing regulations or revising guidance, consistent with law, to expand access to health coverage by allowing more employers to form AHPs. To the extent permitted by law and supported by sound policy, the Secretary should consider expanding the conditions that satisfy the commonality‑of-interest requirements under current Department of Labor advisory opinions interpreting the definition of an “employer” under section 3(5) of the Employee Retirement Income Security Act of 1974. The Secretary of Labor should also consider ways to promote AHP formation on the basis of common geography or industry.

    Sec. 3. Expanded Availability of Short-Term, Limited‑Duration Insurance. Within 60 days of the date of this order, the Secretaries of the Treasury, Labor, and Health and Human Services shall consider proposing regulations or revising guidance, consistent with law, to expand the availability of STLDI. To the extent permitted by law and supported by sound policy, the Secretaries should consider allowing such insurance to cover longer periods and be renewed by the consumer.

    Sec. 4. Expanded Availability and Permitted Use of Health Reimbursement Arrangements. Within 120 days of the date of this order, the Secretaries of the Treasury, Labor, and Health and Human Services shall consider proposing regulations or revising guidance, to the extent permitted by law and supported by sound policy, to increase the usability of HRAs, to expand employers’ ability to offer HRAs to their employees, and to allow HRAs to be used in conjunction with nongroup coverage.

    Sec. 5. Public Comment. The Secretaries shall consider and evaluate public comments on any regulations proposed under sections 2 through 4 of this order.

    Sec. 6. Reports. Within 180 days of the date of this order, and every 2 years thereafter, the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor and the Federal Trade Commission, shall provide a report to the President that:

    (a) details the extent to which existing State and Federal laws, regulations, guidance, requirements, and policies fail to conform to the policies set forth in section 1 of this order; and

    (b) identifies actions that States or the Federal Government could take in furtherance of the policies set forth in section 1 of this order.

    Sec. 7. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

    (i) the authority granted by law to an executive department or agency, or the head thereof; or

    (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

    (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

    (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.


  2. Say what you want, as much as I’m glad Kavanaugh is on. I liked the process before the nuclear option. Harry Reid was a dishonest slime ball.

    1. No, filibusters are lousy. And the latter-day practice of the filibuster and the hold differ a great deal from the practice of the 1950s, which is one reason they are used so excessively. Between 1920 and 1970, you had bout one filibuster a year and a senator conducting one had to stand on his feet all night. Holds used to last a few days.

      1. i have always wondered was it true that when strom thurmond fillibustered the Civil Rights act of 1964, he had a pee tube?

      2. Thank You Tabarrok. If you look back you’ll see they had to use REAL filibusters in the 50s and 60s (aka they had to get up and talk) and the filibuster was used sparingly. The Republicans could have filibustered all kinds of liberal legislation in the 60s and 60s and never die. And except for the 1968 fortas Chief Justice nomination – no SCOTUS hominee was filibustered in the 20th century.

    1. David Benson is the King of Making Stuff Up and owes me twelve citations (one from the OED) and the source of a quotation, after eightteen weeks, and needs to cite all his work from now on. – DSS is Everyman.

  3. This article is ridiculous for several reasons:

    1) The filibuster is a holdover from the bad old days when the slave states demanded and got a disproportionate amount of power.

    2) Last time I read the Constitution, there was no mention of filibusters, judicial holds and other chicanery.

    3) Reid should have done away with the filibuster the minute Obama took office. The GOP made clear that they had nothing but contempt for a black president and were out to block anything and everything he tried to pass -even when it was measures they had advocated before Obama took office.

    4) McConnel and the GOP have also made clear that they would scrap any rule, custom or norm that got in the way of trying to kneecap Obama for being black. So whatever Harry Reid did before doesn’t really matter. The GOP would have resorted to the same roadblocks they’re using now.

    1. 4) McConnel and the GOP have also made clear that they would scrap any rule, custom or norm that got in the way of trying to kneecap Obama for being black.

      Democrats manufacture these fictions to help themselves feel better.

      1. The current fiction is that all the Kavnaugh crap is “Payback” for McConnell holding the Scalia seat open. But of course, that’s the Lie. Schumer never needed an excuse to stop the R’s from confirming conservative justices.

    2. Exactly. Turley’s attempt to “blame” Reid is a pathetic attempt to deflect attention from the strong arm tactics used by Republicans to put Kavanaugh on the Supreme Court.

      1. There were no strong arm tactics. Just a lot of lying and defamation by Democrats And, of course, no Democrat in this forum will own up to any of it.

      2. Don, Reid set the tone. Apparently there was a truce between the two parties when it came to the number of votes needed. Both sides abided by that agreement until Reid broke it. Maybe it was the right thing to do, maybe not. It was broken by Reid, should not the other side live under the new rules created by the Democrats through Reid?

    3. 1) The filibuster is a holdover from the bad old days when the slave states demanded and got a disproportionate amount of power.

      No, it is not. It was added to Senate rules by accident in 1806 and proved useful for any sort of dissident bloc, which is why it has remained in place and why the Democrats were using it to bloc George W. Bush’s judicial appointees.

  4. PH — Medicare does set maximum payment for procedures, tests and hospital stays.

    1. Right David and therefore the opinion of the physician in practice who wrote the book on the subject is paid at the same rate the recent medical graduate gets even though that recent medical graduate was the lowest in his class at the worst medical school.

  5. Why is U.S. Health Care So Expensive? Some of the Reasons you’ve heard turn out to be Myths.
    Margot Sanger-Katz
    2018 Mar 13
    TNYT, The New York Times

    1. Watch this sub-thread for comments by Trumpers telling me “Consumer Reports” has a left-wing bias.

      1. No, the Trumpers are going to tell you and Consumer Reports to define ‘medical bankruptcy’. (Before we address what to attribute bankruptcy statistics to).

    2. From the article: “Since its adoption, far fewer Americans have taken the extreme step of filing for personal bankruptcy.”

      Correlation is not causation and telephone surveys are not the way to go since exact information is available at the courthouse. Allan St. John is no expert and today he speaks on healthcare tomorrow on stereo speakers. There is no useful data to determine what the cause of the bankruptcy was. People were out of work starting before 2010 and many had been engaged in a lot of spending including house flipping etc. This led to a lot of bankruptcies and contributed to the financial recession.

      Since in the past those that did studies on bankruptcies found only about 7% were substantially due to medical causes and some studies even less the fall in the number of bankruptcies has to be due substantially to other causes leaving no ability to calculate medical bankruptcies with accuracy..

      Take note how the report doesn’t show a direct connection to medical conditions and bankruptcy. By the way when people get sick they frequently can’t work and go bankrupt because there is no income.

      Take note of the type of statements made in the article which tell you the untrained author was reaching far beyond his knowledge: “The truth is that it’s not that easy to determine how many bankruptcies are caused by medical debt.”

      1. bad housing lending practices in the form of easy credit based on widespread systemic fraud, were a direct cause of financial crisis, but also a secondary factor in creating a false sense of wealth in those who stripped equity from their own homes and wasted money on a lot of things

        medical debts are complicated. the thing allan said that gives the lie to that simplistic article is this perceptive remark:

        “By the way when people get sick they frequently can’t work and go bankrupt because there is no income.”

        exactly. dont confuses effects with causes. but in complicated systems things can be both depending on exactly what is being considered. that’s why we call them complicated in the first place.

        1. “dont confuses effects with causes. but in complicated systems”

          Kurtz, Peter Hill can barely deal with simple systems. He definitely can’t deal with complicated systems.

    3. Obamacare is irrefutably unconstitutional as “individual” not “…general Welfare.” The power of Congress to tax for individual welfare was deliberately omitted and, thereby, willfully excluded from the Constitution.

      The concluding act was when Roberts falsely propped Obamacare up by erroneously and preposterously commingling the definitions of the words “state” and “federal” with reference to its “exchanges.”

      The SCOTUS is a rubber stamp for unconstitutional redistributionist and social engineering laws and programs and it has been for the past 157 years.

      The SCOTUS knows well the Communist Manifesto and roundly rejects the U.S. Constitution.

      Article 1, Section 8

      “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;…”

    4. it was in a state of severe crisis over billing practices and what is usually called “waste and fraud” but it had been for years before, it was during the ACA, and it still is plagued by questionable billing practices. many of which are driven by the massive amount of socialistic fiddling that has been in place for many decades and drives a lot of the excessive billing practices in the first place. and will keep on driving them.

      is this a function of democrats and republicans anything? no, it’s a complicated mess with thousands of moving parts.

      the ACA was one way of addressing them, nothing more than a tinkering, if an elaborate tinkering, and undoing parts of it is just tinkering more

      but, some problems are difficult and as the doctors tell us, we need to think more about “managing” them rather than “solving them” because there is no cure. Well there’s no cure for people getting sick and dying. life is a terminal condition. and with everyone sitting around on their butts eating garbage and playing with cell phones people are just going to get sicker.

      i have found a lot of comments by partisans on both sides to be very disingenuous but to be fair it’s usually the Democrats that are the more-guilty of pretending that intractable human difficulties can must be resolved by the magic pen and imposition of more taxes.

      Which was a big part of the ACA of course: more taxes. and more subsidy for insurance companies. and hence those they pay: hospitals

      of course ending Medicare and Medicaid is not feasible either so we are in a difficult position on the topic.

      outside of “university administrator,” one of the cushiest jobs anyone can get, is “hospital administrator”

      1. “the ACA was one way of addressing them”

        My assessment is that the ACA was a hybrid drawing the worst from the right and the left creating a shell of a bill that if one actually read (I read the House version completely) one realized that many of the difficult questions were left unanswered. Take the bill and do a search for a version of the Secretary shall, (will) decide. For Obama I believe it was an intermediate step to National Health Insurance. Carrots and sticks were used to get its passage and exceptions were made for certain locations to increase the numbers of positive votes. Harry Reid was one of those (If I remember coreectly) provided a lot of carrots.

        There are solutions that are reasonable but politics intervenes. The Bush Plan though not adequately spelled out had a structure that might have been workable. Variations of that plan have been proposed. One thing is known for sure NHI for seniors (Medicare) increased administrative costs and caused cost shifting paid by younger people. Part D is another senior plan that that includes cost shifting. About 25% is paid by the senior and the rest is being shifted to the general population and more affluent seniors. It has been inflationary and for the average senior it likely hasn’t saved much money. When it was passed I referred to Part D as the Merck recovery plan as Merck was not doing very well at the time and had little in the pipe line. Unknown to many people is that before the passage of Part D major pharmaceutical houses were providing free brand name drugs or a months supply for $15 to poor seniors. After the passage of Part D the taxpayer and senior paid for those medications formerly free or near free.

  6. Questions:

    1. Does this environment make it impossible for Breyer or Ginsburg to retire while Trump is in office? Ginsburg has already said she won’t go under Trump. Breyer would be considered a traitor to do so, destroying his reputation.

    2. Will Clarence Thomas announce his June 2019 retirement after the Republicans hold the Senate in the midterms? This could assure Barrett has less of a fight, and locks a solid conservative seat for 30 years rather than 10.

    3. Will Democrats run on the impeachment of Kavanaugh? While impeachment would further tarnish his history, he would never be convicted by two thirds of the Senate.

    4. Does this controversy pave the way for the left to claim the court is illegitimate and should be resisted and defied? Particularly by the states?

    1. One observer of Thomas has said the man has a life outside law and politics and might just leave at the earliest opportunity (of course, so did Scalia, and he stuck around until he died).

    2. if the left wants CW2 then organized resistance from the states would be a good way to start it, since that was the essential structural causes in the first one, why not the second one too?

      oh, and it can go that way. for a Marxist-Leninist communist, democratic-legislative shenanigans are just tactical retrenchments in what is considered a historical process that will necessarily require violence to complete.

      and the freaks out there rioting are usually steeped in this way of thinking. it’s time for Republicans to wake up and see that organized violence from the Left is, doctrinally speaking, something inevitable.

      Hence, the Republicans need to be prepared for exactly that.

      the NRA membership gets it and always has.

  7. It’s amazing the number of liberals who refuse to believe how Douchebag Reid changed the course of history by nuking the filibuster on all nominees except the Supreme Court variety.

    1. You do recall that at the time, Republicans were blocking the confirmations of Judges at every level. I heard Trump blaming the Democrats recently because he had so many judgeship’s to fill. Because Republicans wouldn’t allow it. While convenient to blame Reid, do you have any doubt that McConnell wouldn’t have meant removing the filibuster on Supreme Court nominees anyway if it meant he could shape the court for a generation?

      1. Why not write Miguel Estrada and Janice Rogers Brown and tell them the Republicans started it?

        1. It should be okay to oppose nominees with cause. Estrada had no experience as a Judge and Brown was very extreme. Then again, Bush tries to appoint his White House lawyer who everyone except him knew was unqualified.

          1. Enigma……..I certainly hope you are not referring to Harriet Meiers as unqualified!.

          2. 1. “Very extreme” means ‘inconvenient to the Democratic Party’.

            2. I have news for you, Enigma: all judges were once non-Judges, including Elena Kagan.

            3. Didn’t bother you when EK was nominated to the Supreme Court, so don’t see why it should bother you that a man who had been a clerk for two prominent members of the appellate bench and who had been head of the appeals bureau for the Southern District of New York was appointed to an appellate court in Washington.

          3. The White House lawyer in question had been the managing partner of a law firm with 200 attorneys in it and graduated top of her class at Southern Methodist.

            Do liberals ever offer any non-fraudulent arguments these days? Democratic appointees to the Court in the last century have included Louis Brandeis (advocate at the nexus of law and social policy, no experience as a judge), Hugo Black (member of Congress whose experience had been limited to 2 years as a JP), Robert Jackson (no experience in judicial positions), Arthur Goldberg (labor lawyer, never a judge), Abe Fortas (law professor, Johnson crony, no experience as a judge), and Elena Kagan (no experience as a judge).

            1. Robert Jackson was very well qualified. He was a lawyer with tremendous experience in private practice and public service including appeals.

              He had faults of course but he was a very legit nomination.

      2. the process of confirming article III judges is and must be inherently political and that’s why it is left to the legislature. there is no getting around it in the end. nor is that necessarily bad.

        but anybody can be evaluated for judicial competency. just as the ABA a left leaning organization approved Kav. as highly qualified. the Democrats always like to pretend however that their partisan wrangling is some kind of virtue-drama in which they are the saints and the others are demons. Which makes them very fake and false by habit.

  8. Harry Reid should never have pushed through the nuclear option. Our government was designed to be safe, not fast. This was not a good move.

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