“You will no doubt come to regret this, and you may regret it a lot sooner than you think,”
-Senate Minority Leader Mitch McConnell, R-Ky., warned Democrats in 2013
It’s time for conservatives to show their appreciation of Senator Harry Reid for setting the tone and tenor in Washington politics. Please send him thank you cards for his short-sightedness. Karma’s a **tch. November 2013:
Senate Majority Leader Harry Reid, D-Nev., pushed through a controversial change to Senate rules Thursday that will make it easier to approve President Obama’s nominees but threatens to further divide an already polarized Congress.
Fifty-two Senate Democrats and independents voted to weaken the power of the filibuster. The change reduces the threshold from 60 votes to 51 votes for Senate approval of executive and judicial nominees against unanimous GOP opposition. Three Democrats — Sens. Mark Pryor of Arkansas, Joe Manchin of West Virginia and Carl Levin of Michigan — opposed the change.
The rule change does not apply to Supreme Court nominees, who are still subject to a 60-vote filibuster threshold, or to legislation.
At the time, Philip Klein warned:
Senate Majority Leader Harry Reid’s Thursday move to weaken the filibuster is supposed to be limited to federal judicial appointments and executive nominations rather than Supreme Court appointments or actual legislation.
But, in reality, it will have wider implications.
Now that the taboo against exercising the “nuclear option” has been removed, it will inevitably be triggered again when the 60-vote threshold in the Senate gets in the way of the majority party accomplishing what it wants.
If Republicans control the Senate and presidency again and Democrats try to hold up a Supreme Court nominee, there’s no reason why they wouldn’t use the Reid precedent to obliterate the filibuster on Supreme Court nominees, too.
And indeed, Senator Reid’s launch of the “nuclear option” paved the way for Mitch McConnell, when Republicans gained majority, to expand the change in Senate rules to cover Supreme Court nominees:
“What goes around comes around. And someday they’re going to be in the minority,” Republican Sen. John Thune warned.
Well, it’s come around. Democrats are in the minority and many are pointing to Reid’s tweet as evidence of the folly of changing the Senate rules.
Reid’s “nuclear option” did not extend to Supreme Court nominees at the time, though McConnell used the precedent of Reid’s decision to lower the vote threshold for the confirmations of Justice Neil Gorsuch last year.
Thousands of people have retweeted Reid and thousands more commenting — lost on no one is the irony of the situation.
McConnell, then minority leader, cautioning Harry Reid not to invoke the “nuclear option” — lowering the vote threshold for confirmation for judges and Cabinet officials from 60 to 51 votes. McConnell as majority leader added Supreme Court Justices to the lower threshold. https://t.co/Oeh7lRXasY
— Jake Tapper (@jaketapper) June 27, 2018
In 2012 I warned against getting rid of the filibuster. Harry Reid made a disastrous mistake by modifying the once sacrosanct filibuster rule. After Reid violated the principle, it was easy for Mitch McConnell to extend to Supreme Court nominees. https://t.co/L6UxXAcqaL
— Ted Lieu (@tedlieu) June 27, 2018
I remember this. Unlike enraged Democrats who have completely memory-holed Harry Reid. https://t.co/idG0Oi5ccg
— Tom Nichols (@RadioFreeTom) June 27, 2018
The embed codes might not be working correctly; so click on the Twitter links for the full context.
President Trump’s first Supreme Court nominee cleared the confirmation process…thanks to Senator Reid:
Democrats immediately cried foul.
The seat on the nine-member Supreme Court had opened about a year earlier, but Senate Republicans had blocked President Barack Obama’s choice while making the unprecedented argument that no nominee should be considered during an election year. The American people would decide the next Supreme Court justice, the GOP argued, via the 2016 presidential election.
And the American people spoke: Donald Trump won the presidential election. He got to decide. Why are Republicans not hypocritical where President Obama’s judicial pick, Merrick Garland, was concerned? Because Republicans controlled the majority then. And because they control the majority now. That’s the difference. They carried out the hypothetical Biden rule and turned it into practice. If Democrats wished to do to Kavanaugh what was done to Garland, and delay until November elections to “let the American people have their say”, then they should have won more Senate seats to be in the Senate majority.
Anyone who wishes to point fingers on how we got to this point, need look no further than long-term Senator Harry Reid:
In today’s Washington, Reid and Senate Democrats are apoplectic not only about the shutdown but about the unprecedented use of the filibuster being deployed by the Republican minority. (See the statistics here on the incredible surge in filibuster use.) But back in 2003-05, Senate Democrats were in the minority, and they used the filibuster in ways that presaged and created a path for the Republican extremism. Comparing Reid’s filibuster policies when the Democrats were in the minority to the current obstructionism of Mitch McConnell, is comparing playing with matches to being an arsonist. But arsonists start by playing with matches, and it’s worth looking at how Reid took the filibuster, once a break-glass-in-case-of-emergency tool and used it freely in helping to build the culture of confrontation we have now.
After the 2002 elections, Democrats lost their Senate majority and were eager to use whatever tools they could to stymie Bush’s conservative judicial nominations. Famously, since the nomination of Robert Bork to the Supreme Court in 1987, senators had been assessing a nominee’s ideology rather than their academic qualifications. But in the years afterward, senators became less and less hesitant about using the body’s myriad delay tactics to stall nominations from even getting a vote. (Bork, at the very least, got one and lost.) By the time of Bill Clinton’s presidency, Republicans had no compunction about bottling up any number of judicial nominations, especially as his term came to an end using only-in-the-Senate tools like holds. This included Clinton’s nominee, Elena Kagan, who never made it to the D.C. Circuit Court of Appeals, because her nomination was never given a hearing in the Judiciary Committee then chaired by Republican Orrin Hatch.
When Democrats returned to the minority in 2003, Reid, then the minority whip, took out a cannon when before only pistols had been used to shoot down nominations. Democrats employed the filibuster as a weapon of choice. “If it all began with Robert Bork. No doubt the intensity of judicial nominees heated up at that time — and now the Republicans have taken to extreme and it’s filibusters on steroids,” says a top Democratic staffer from that time, recalling the road to chaos.
Granted, Reid’s tactic was not the first time the filibuster had been used to scuttle a judicial nomination. It happened in the 19th century, and it also took place in 1968 when Lyndon Johnson tried to elevate Associate Justice Abe Fortas to be chief justice. (Fortas eventually resigned from the Court over ethics issues.) But Reid embraced the filibuster as the chief tactic in undermining judicial nominations. Norm Ornstein, known as a nonpartisan congressional scholar, has gotten attention for a new book, It’s Even Worse Than It Looks, that lays most of the blame for Washington’s current gridlock squarely on Republican extremism. Still, Ornstein calls the Democratic judicial filibusters of the previous decade distasteful. “It was a bad moment that routinized filibusters,” he says.
Most notably, Reid used the filibuster to scuttle the nomination of Miguel Estrada, a conservative lawyer who had been a federal prosecutor and an assistant solicitor general. The president’s nomination of Estrada to the D.C. Circuit Court of Appeals, arguably the nation’s second-highest court and a springboard for the Supreme Court, set Washington buzzing. Of Hondurandescent, Estrada is of an ethnicity that put him on a conservative wish list for the Supremes — if he first could get on the D.C. Circuit. Democrats recognized this, too, and seized on his conservative politics, which was entirely justifiable, although any number of liberals thought Estrada a good pick. Kagan herself said during her Supreme Court hearings some years later that Estrada would be an “absolutely superlative” jurist.
But the Democrats held up a vote on Estrada at first, they said, to get more answers. Reid was integral to the obstructionist strategy. “Mr. Estrada comes with a scant paper trail but a reputation for taking extreme positions on important legal questions. He stonewalled when he was asked at his confirmation hearings last fall to address concerns about his views,” Reid said in 2003, explaining one of the many delays and sounding every bit like the Republicans who would later oppose Obama’s nominees for similar reasons. But it’s not like Reid & Co. moved on to a vote after a reasonable period of collecting information. The nomination languished for almost two years. Eventually, Estrada withdrew his nomination. (Disclosure: Estrada was a member of the team that represented me and Time Inc. in the CIA leak case.) Before it was over, some 10 Bush nominees were blocked through the filibuster.
At the time, Reid defended his actions, noting that as a percentage of judicial nominations President Bush had fared quite well. “We turned down 10. More than 98 percent of the judges that the president asked for he got: 204 to 10. That’s a tremendously impressive number for the president to get,” he said in an interview with PBS shortly after becoming minority leader in 2005. That’s a fair point. Clinton saw 70 nominations scuttled, but it doesn’t change the fact that Reid as whip and then as minority leader took the filibuster to a higher level by training it on judicial nominees en masse. (It’s worth noting that then-Senator Barack Obama backed a filibuster of Samuel Alito when Bush tapped the New Jersey jurist for the high court.)
In early 2005, the Republican majority in the Senate, then led by Bill Frist, openly discussed the “nuclear option” to curtail the filibuster. (Today, Democrats now in the majority and bedeviled by the Republicans, make similar arguments.) To avoid the conflagration, more than a dozen senators of both parties, the “Gang of 14,” came to an agreement that the filibuster would not be used against judicial nominations unless it was under “extraordinary circumstances.” The concord wasn’t formally voted on in the Senate, but it was informally adopted as policy. It stood as a rebuke to Reid and the Democratic tactics. The peace didn’t hold, of course. Filibusters are now de rigeur in the McConnell era. It’s impossible to imagine so many senators even being capable of coming together to offer a voice of sanity. For his part, Reid has said he’s considering pushing for substantive filibuster reform, even if he hasn’t acted on it.
precisely the same Senate rule he said was an “assault on democracy” in 2005 when Democrats were in the minority and they were using the filibuster. Reid, in April 2005, said, “The threat to change Senate rules is a raw abuse of power and will destroy the very checks and balances our founding fathers put in place to prevent absolute power by any one branch of government.”
For good and bad, we all have Senator Reid to thank for the state of Washington today. Democrats didn’t regret the nuclear option decision in 2016. Do they still feel the same in 2018? Will Republicans?
Eventually, Republicans will once again be in the minority. Will it happen this November?
“I think the minority will rue the day that they broke the rules to change the rules,”
-Sen. Susan Collins, R-Maine
A former fetus, the “wordsmith from nantucket” was born in Phoenix, Arizona in 1968. Adopted at birth, wordsmith grew up a military brat. He achieved his B.A. in English from the University of California, Los Angeles (graduating in the top 97% of his class), where he also competed rings for the UCLA mens gymnastics team. The events of 9/11 woke him from his political slumber and malaise. Currently a personal trainer and gymnastics coach.
The wordsmith has never been to Nantucket.