In the days before George Washington was to set a historic precedent by taking the oath of office and becoming the first president of the United States, he was often heard to say, “I walk on untrodden ground.”
The reluctant Washington no doubt understood that, as one Mount Vernon historian wrote, “the precedents he set must make the presidency powerful enough to function effectively in the national government, but at the same time these practices could not show any tendency toward monarchy or dictatorship.”
He also understood that how he constructed and conducted this first presidency would set standards and practices for every president to follow. Over time, as the country changed, so has the presidency. But the deference to precedent, whether in the courts or the Congress or the Oval Office, has generally served the country well.
Certainly, there have been times when creating a new precedent has been warranted. The Supreme Court’s decision in Brown v. Board of Education is a good example. In other moments of the nation’s history, the choice to break precedent has been crassly political. Former Senate Majority Leader Harry Reid’s decision to end the filibuster for all judicial and executive branch nominees, save the Supreme Court, was partisan politics at its worst. Ironically, it led not to a liberal court, but a conservative one.
Democrats, especially Nancy Pelosi, should have learned from Reid’s mistakes. When breaking precedent, be careful what you wish for.
But Pelosi apparently learned nothing from Reid’s flagrant partisanship when, in her determination to control the Jan. 6 select committee’s scope and narrative, she egregiously broke precedent by refusing to seat the minority members selected by GOP leaders.
“With respect for the integrity of the investigation, with an insistence on the truth and with concern about statements made and actions taken by these Members, I must reject the recommendations of Representatives Banks and Jordan to the Select Committee,” she said. Pelosi didn’t choose to share the substance of those “statements” or “actions,” nor provide any proof to back up her allegations.
Minority Leader Kevin McCarthy responded by pulling all the Republican nominations. Pelosi then threw salt into what was rapidly becoming an open wound by seating two Republican members rejected by GOP leaders.
Pelosi opened a Pandora’s box in order to ensure a specific narrative and avoid a bipartisan discussion of the events surrounding Jan. 6. What she did was start a war.
And here we are today. Republicans call Democrats, who voted two Republicans off their committees in 2021 because of their past “behavior,” hypocritical, given the behavior of Adam B. Schiff and Eric Swalwell over the past six years, from the Russia hoax to Swalwell’s alleged earlier association with a Chinese spy.
Democrats argue that Schiff and Swalwell have over “two decades of distinguished leadership providing oversight of our nation’s Intelligence Community,” calling them “eminently qualified.”
But both sides are now arguing the wrong point.
The fact is when Pelosi, much like the monarch Washington feared becoming, made her unilateral decision to reject the appointments of Jim Jordan and Jim Banks to the Jan. 6 committee, she broke, perhaps irretrievably, the long-standing tradition that the minority party chooses its own members for standing and select committees.
In January 2022, McCarthy characterized her move this way: “The Democrats have created a new thing where they’re picking and choosing who could be on committee. Never in the history [of Congress] have you had the majority tell the minority who could be on committee.” Until Pelosi.
No one is arguing that Speaker Pelosi didn’t have the power to do what she did. But was it the right thing to do? Her legacy now includes becoming the first speaker to strong-arm a select committee into existence and dictate its composition without the participation of the legitimate minority party leadership.
And it was a major unforced error, because what she did effectively codified what McCarthy is doing now, keeping his promise of last year to boot Schiff and Swalwell from the Intelligence Committee if Republicans regained the majority. Even Pelosi herself admitted as much in a statement at the time the select committee was constituted when she said, “The unprecedented nature of January 6th demands this unprecedented decision.”
So, House Minority Leader Hakeem Jeffries can thank his former leader for leaving him with the aftermath of another heavy-handed decision by Pelosi. He would have been wise to try to repair the damage done by her rejection of a bipartisan look into the actions or inaction leading up to Jan. 6 and opt for a fresh start with a new Congress and a new speaker. That’s what the majority of the country wants.
But, in one of his first moves as minority leader, Jeffries chose instead to throw down the gauntlet. In a letter this week to McCarthy, Jeffries ignored Pelosi’s recent history and wrote, “It is my understanding that you intend to break with the longstanding House tradition of deference to the minority party Intelligence Committee recommendations and deny seats to Ranking Member Schiff and Representative Swalwell. … I urge you to honor past practice of the House of Representatives and our mutual interest in working together for the good of the American people by accepting my recommendation.”
But that is exactly what McCarthy is doing, following precedent — Pelosi’s precedent that the speaker of the House has the power to unconditionally reject the minority party’s nominees for certain committees, Intel being one of them. What Pelosi did was affirm that prerogative and for any reason the speaker cites.
McCarthy is in the process of doing just that in the case of Schiff and Swalwell.
David Winston is the president of The Winston Group and a longtime adviser to congressional Republicans. He previously served as the director of planning for Speaker Newt Gingrich. He advises Fortune 100 companies, foundations, and nonprofit organizations on strategic planning and public policy issues, as well as serving as an election analyst for CBS News.