In 2013, as Senate majority leader, Harry Reid blew up the joint when he abolished the filibuster for federal appointments for both executive and, more importantly, judicial. This removal of opposition filibuster paved the way for President Obama’s unencumbered appointment of all district and circuit court judgeships, but excluded only the Supreme Court. Thus unencumbered, the Democratic-controlled Senate packed the lower courts with Obama nominees.
Reid was warned by numerous opponents at the time that the day would come when Republicans would be in the majority and would exploit the new rules to equal and opposite effect. That day is now here.
The results are unmistakable. President Trump’s Cabinet appointments are essentially unstoppable because Republicans need only 51 votes and they have 52. Thanks to Reid’s 2013 rule change, the Senate has no need to reach 60 votes, the number required to overcome a filibuster. Democrats are now powerless to stop anyone on their own.
But isn’t the filibuster for Supreme Court nominees still in place? Well, yes, but if the Democrats dare try it, everyone knows that Majority Leader McConnell will do exactly what Reid did and invoke the nuclear option — filibuster abolition — for the Supreme Court, too. And thus, thanks to Reid’s departure from traditional Senate rules back in 2013, the Democrats are equally powerless to stop the confirmation of Judge Gorsuch to the Supreme Court.
And yet, it appears that Democrats are ramping up for perhaps their biggest fight yet — one that has no guarantee of measurable success and plenty of downside. To put it plainly, Democrats don’t have much of a hand in Washington right now, and going hard at Gorsuch risks overplaying it. In the long run may not be the best course for Senate Democrats coming up for re-election in 2018.
Reid never fully appreciated the magnitude of his crime against the Senate. As pointed out by Charles Krauthammer at the time, the offense was not abolishing the filibuster — you can argue that issue either way — but that he did it by simple majority. In a serious body, a serious rule change requires a serious supermajority. (Amending the U.S. Constitution, for example, requires two-thirds of both houses plus three-quarters of all the states.) Otherwise you have rendered the place lawless. If in any given session you can summon up the day’s majority to change the institution’s fundamental rules, there are no rules.
Restoration of filibuster rules may come eventually, but such an agreement is for the future. Not today. Republicans are no fools. They are not about to forfeit the advantage bequeathed to them by Harry Reid’s shortsighted willfulness. They will, as they should, retain the nuclear option for Supreme Court nominees throughout the current Republican control of Congress.
