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National Review
National Review
21 Nov 2023
The Editors


NextImg:Harry Reid’s Judiciary

Ten years ago today, Harry Reid, Chuck Schumer, and Senate Democrats shattered a long-standing norm by abolishing the filibuster for judicial and executive-branch nominees other than Supreme Court justices. What followed was an object lesson in why the long-settled norms of American governance — the background rules of the game that both sides play under in seeking popular mandates and exercising the powers that elections confer — should not be lightly discarded.

This is old Burkean wisdom: Drastic changes to the system may produce results you didn’t anticipate and won’t like. Those in power should not tear down restraints they might need later when out of power. In blunter terms, paraphrasing a saltier expression, mess around and find out.

Democrats should have learned that lesson from the Ethics in Government Act of 1978, which created the independent counsel. It seemed like a great idea when these runaway prosecutors were tormenting the Reagan and first Bush administrations. Not until it was turned against Bill Clinton and his cabinet did Democrats see the wisdom of its conservative critics and allow the statute to expire. Reid chose to learn that same lesson the hard way.

The Senate filibuster for judicial nominees acted as a moderating force. That long worked to the advantage of Democrats who prefer a judiciary that does nothing so radical as enforce the law as written. As Antonin Scalia famously asked, “What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean?” At the Supreme Court level, following the bipartisan filibuster of Abe Fortas — who lacked the votes to command a majority and resigned in disgrace not long after his nomination as chief justice — Democratic senators made unprecedented efforts to filibuster William Rehnquist upon his appointment in 1971 and his elevation to chief justice in 1986, and to filibuster Samuel Alito in 2005. Joe Biden participated in the latter two filibusters and Barack Obama in Alito’s.

In the early 2000s, with Biden, Schumer, and Reid in the saddle, they staged the first-ever filibuster of circuit-court nominees, famously including the targeting of Miguel Estrada for the offense of being a brilliant conservative Latino who might make it to the Supreme Court. Senate Republicans, frustrated by this norm-breaking obstruction, threatened during George W. Bush’s presidency to end the filibuster for judges. Democrats charged that this was a radical “nuclear option” (a term coined by Republican Trent Lott, a skeptic of the tactic), and Republicans backed down after striking a deal to confirm some of their nominees and abandon others.

But, when Republicans filibustered some of Obama’s nominees, Democrats changed their tune and decided to end the very tool they had used to stop Republican appointees. After November 21, 2013, a simple majority in the Senate would do. At the time, we editorialized that Democrats “show themselves to be hypocrites on the matter at hand and also on the subject of hypocrisy — call it hypocrisy squared.” Senate Minority Leader Mitch McConnell warned Reid that “you’ll regret this, and you may regret this a lot sooner than you think.” Rarely has a warning from a political opponent been so richly vindicated by subsequent events.

Democrats, briefly, enjoyed their triumph. The 113th Congress, in 2013-14, confirmed 132 federal judges, 88.6 percent of those nominated, including 23 circuit judges — each the highest figures in many years. In June 2014, Andrew Prokop of Vox wrote, noting the accelerating pace of confirmations, “Six and a half months later, the verdict is in — Democrats regret nothing.”

Gloating was short-lived: Republicans recaptured the Senate in 2014 and the White House in 2016. We argued after the 2014 victory against restoration of the rule, on the grounds that the Democrats had proven their willingness to discard the rule when in power, and “the benefits of having no filibuster for judicial nominees, when a Republican makes it to the White House, far outweigh” the downsides.

McConnell used the new power of the majority to dramatically slow the pace of confirmations to just two appellate nominees and 18 district judges, and refused to even hold a hearing on the Supreme Court nomination of Merrick Garland. Then, once Donald Trump entered the White House, Republicans used Reid’s weapon to confirm 54 circuit judges and 174 district judges in four years. With the precedent in tatters, they also discarded its remains to confirm three Supreme Court nominees who would have been enormously difficult to get on the Court with a 60-vote threshold. Those three justices form the backbone of the new conservative majority and provided the decisive votes to overturn Roe v. Wade. Reid, who died late last year, lived to see the utter ruination of his plans by his own actions.

Be careful what you wish for.