This could be a historic week for the Senate, as it now seems likely that the Republicans will change the chamber’s rules to remove the filibuster for Supreme Court nominees. This is known, in Washingtonese, as “going nuclear” or “dropping the nuke.” That’s a pretty powerful metaphor, which was intended to show the far-reaching consequences of making such a move. But as we begin this epic debate, it would behoove everyone inside the Beltway (especially those working in the media) to review a quick rundown of how, exactly, we got to this point. Because this won’t be the first Senate filibuster nuke, and it may not be the last one ― at this point, who knows if the legislative filibuster will survive for much longer?
The first nuclear option happened four years ago. Senate Majority Leader Harry Reid dropped the nuke on filibustering all executive branch appointments and all judicial appointments up to (but not including) the Supreme Court. This week’s nuke will be the removal of the last remaining executive branch appointee filibuster, on the confirmation of Supreme Court justices.
None of this happened in a vacuum, of course. Neil Gorsuch would likely have been confirmed rather easily if these were normal times, absent the history of how Merrick Garland was treated. But that history exists, of course, which is why over 40 Democrats are going to do everything possible to stop Gorsuch’s confirmation.
Four years ago, Harry Reid got pushed to the brink by an unprecedented amount of Republican obstructionism. When Reid proposed his nuclear rule change, it was early in President Obama’s second term (November of 2013). There was a mounting level of general GOP obstructionism to Obama nominees at the time, as well as one very specific case of obstructionism which drove Reid to this point. In the speech he gave on the Senate floor to introduce the change, Reid outlined the general case in great detail:
The need for change is obvious. In the history of the Republic, there have been 168 filibusters of executive and judicial nominations. Half of them have occurred during the Obama administration ― during the last four and a half years.
Further, only 23 district court nominees have been filibustered in the entire history of this country. Twenty of them were nominated by President Obama. With one out of every 10 federal judgeships vacant, millions of Americans who rely on courts that are overworked and understaffed are being denied the justice they rightly deserve. More than half the nation’s population lives in a part of the country that’s been declared a “judicial emergency.”
There are currently 75 executive branch nominees ready to be confirmed by the Senate that have been waiting an average of 140 days for confirmation. One executive nominee to the agency that safeguards the water our children and grandchildren drink and the air they breathe has waited more than 800 days for confirmation. Senate Republicans filibustered a nominee for Secretary of Defense for the first time in history ― even though he was a former Republican Senator and a decorated war hero, nominated in a time of war.
It is a troubling trend that Republicans are willing to block executive branch nominees even when they have no objection to the qualifications of the nominee. Instead, they block qualified executive branch nominees to circumvent the legislative process. They block qualified executive branch nominees to force wholesale changes to laws. They block qualified executive branch nominees to restructure entire executive branch departments. And they block qualified judicial nominees because they don’t want President Obama to appoint any judges to certain courts.
So, to recap: 82 out of 168 total filibusters of executive nominees happened in the first five years of Obama’s term. Of the 23 district court filibusters in all of American history, 20 of them happened in the first five years of Obama’s term. We also saw the first-ever filibuster of a Defense Secretary nominee, who was a former GOP senator and war hero. That nicely sums up the nuclear level of obstructionism that Republicans had escalated things to in the Senate.
Before we get to the specific case (what Reid referred to in that last sentence of his), there is one other bit of history worth mentioning. While some Democrats had been urging Reid to drop the nuke for a long time (Jeff Merkley started back in 2007, before he even became a senator), Reid had long resisted such a drastic move. His preference was to either cut a deal with Republicans or force them into a deal. There were various bipartisan “gangs” (of whatever number) who cut such deals during this period. This would open a short window of time to get people confirmed, but Republicans repeatedly then immediately broke the deal and went back to obstructing everyone. Reid had personally been burnt by such deals ― to the point of resembling Charlie Brown lying flat on his back after Lucy tricked him once again with the football. Reid fought back by scheduling tons of votes right before holiday recesses. By refusing to adjourn, the Democrats made things very personal for Republicans: continue to obstruct, and you will not get a vacation away from D.C. This sounds silly, but it was remarkably effective, on numerous occasions.
This all sets the stage for the specific case which forced Reid to drop the nuke. Not only were the Republicans united in absolute obstructionism, they were laughably accusing Obama of precisely what they were attempting ― a radical change instituted on the judicial branch for sheer partisan purposes.
When Franklin D. Roosevelt was stymied by a Supreme Court which was declaring much of his New Deal unconstitutional, he came up with a plan (which was ultimately unsuccessful) to change the high court. He’d expand the Supreme Court by six additional justices, all of whom he’d nominate. This would have shifted the balance of power on the court dramatically, but Congress didn’t let him get away with it. The move was called “court-packing.”
In 2013, Republicans tried to “unpack” a court. The D.C. Circuit Court of Appeals is the second-most important court in the land, since so many cases go through it which end up at the Supreme Court. This appeals court was supposed to have 11 members. Obama was supposed to fill four vacancies. After much obstructionism, one of them was confirmed. This left the court in a 4-4 partisan split. So Republicans announced they weren’t going to consider anyone for the remaining three slots, no matter what their qualifications were. They were going to just change the court from 11 members to eight, period. And then they had the temerity to accuse Obama of trying to “pack” the court.
That was the spark that set off the nuke. Just as Democrats are now doing, Republicans essentially said that no nominees would even be considered, period. That’s what Harry was referring to when he said of Senate Republicans, “they don’t want President Obama to appoint any judges to certain courts.”
The treatment of Merrick Garland was not without precedent, in other words. When half of all executive appointee filibusters of all American history happen within five years and when 20 of 23 district court nominee filibusters happen during the same period, there was very good reason to change the rules of the game. I personally urged Harry Reid to do so months before he took action. The fallout from Harry’s nuke was good for Democrats while they were in power, and has likewise been good for Donald Trump since he took office (Democrats were unable to filibuster any of Trump’s cabinet choices because of Harry’s nuke).
The fallout from Mitch McConnell dropping the second nuke will likely chart a similar course. It’ll be good for the “in” party and bad for the “out” party ― right up until when they switch places once again. As the political pendulum swings, it may even out in the end. But we certainly didn’t get to this point (as some in the media seem to believe, when Republicans attempt to make this case) because Democrats suddenly woke up one morning and decided to change history by fighting Republican nominations tooth and nail. There’s a long history behind the first use of the nuclear option, and there’s the history of Merrick Garland’s nomination behind where we stand now, on the brink of the second nuclear option. So, please, let’s remember this important historical context when discussing what is happening in the Senate this week.
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