Bench Memos

Law & the Courts

Reid Staffer’s Inane Attack on McConnell—Part 1

Adam Jentleson, a former deputy chief of staff to Senator Harry Reid, has penned—and the New York Times, showing once again that it has no standards, has published—a ridiculous op-ed titled “Mitch McConnell’s Nuclear Trigger Finger.” Jentleson alleges that Senate majority leader Mitch McConnell “appears to be itching to pull the trigger” on abolishing the filibuster for Supreme Court nominees, “and in his insidious way, he wants to convince Democrats that it’ll be their fault when he does.” Jentleson contends that abolishing the filibuster “would be a hugely disproportionate response to reasonable Democratic opposition.”

Some observations in this post and the next (elaborating a tweet thread from this morning):

1. Given his charge that McConnell has an itchy trigger finger, it’s astounding that Jentleson doesn’t acknowledge that just last October, when Reid was anticipating a President Hillary Clinton and a Democratic majority in the Senate, Reid promised that Democrats would nuke the Supreme Court filibuster if Senate Republicans dared to obstruct a Hillary nominee. From a Talking Points Memo article titled “Harry Reid’s Parting Shot: Dems Will Nuke The Filibuster For SCOTUS” (underlining added):

Outgoing Senate Minority Leader Harry Reid (D-NV) said he is confident that he has laid the groundwork for Democrats to nuke the filibuster for Supreme Court nominees if they win back the Senate in November.

Envisioning Hillary Clinton in the White House and Democrats controlling the Senate, Reid warned that if a Senate Republican minority block her Supreme Court nominee, he is confident the party won’t hesitate to change the filibuster rules again.

Such a move would be an extension of what Reid did in 2013 when he was still majority leader, eliminating filibusters (with a simple majority vote) on the President’s nominees. There was only one exception: the Supreme Court. As it stands now, Democrats still need 60 votes to move forward with a Supreme Court nominee.

Reid said, however, that could change.

“I really do believe that I have set the Senate so when I leave, we’re going to be able to get judges done with a majority. It takes only a simple majority anymore. And, it’s clear to me that if the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I’ve told ‘em how and I’ve done it, not just talking about it. I did it in changing the rules of the Senate. It’ll have to be done again,” Reid told TPM in a wide-ranging interview about his time in the Senate and his legacy.

“They mess with the Supreme Court, it’ll be changed just like that in my opinion,” Reid said, snapping his fingers together. “So I’ve set that up. I feel very comfortable with that.”


Other Senate Democrats were equally candid. As the Huffington Post reported in an article titled “Tim Kaine: Democrats Will Nuke Filibuster For Supreme Court Nominees If GOP Won’t Cooperate”:

Vice presidential candidate Tim Kaine warned on Thursday that his party would move to eliminate rules allowing a minority of Senate Republicans to block Supreme Court nominees should they refuse to consider those nominated by a future president Hillary Clinton….

“If these guys [Senate Republicans] think they’re going to stonewall the filling of [the existing Supreme Court] vacancy or other vacancies, then a Democratic Senate majority will say, ‘We’re not going to let you thwart the law.’”

Democrats, Kaine ultimately predicted, “will change the Senate rules to uphold the law.” 

And from Bloomberg:

[Senator Amy] Klobuchar, and fellow Judiciary Committee member Sheldon Whitehouse of Rhode Island in a separate interview Monday, agree with what Clinton’s running mate, Tim Kaine, told the Huffington Post — that a Senate Democratic majority would likely change the rules if needed to prevent Republicans from keeping the vacancy indefinitely.

“I don’t think we’ll have a choice,” she said, if Republicans line up to filibuster Clinton’s picks. “My hope is we won’t get there.”

So look who’s actually been trigger-happy.

2. By contrast, Mitch McConnell, to the consternation of some conservatives, has consistently declined to answer questions about whether he’d move to abolish the filibuster and instead has repeatedly said merely that, one way or another, the Senate will confirm the Gorsuch nomination. Had a mere nine Democrats decided to support cloture on an overwhelmingly qualified nominee, there is no way that McConnell would be pursuing filibuster abolition on this nomination. It’s only the Democrats’ insistence on filibustering the Gorsuch nomination—a decision that Jentleson evidently supports—that tees up abolition of the Supreme Court filibuster.

3. Beyond the fact that his former boss and other Senate Democrats have embraced what Jentleson now labels “a hugely disproportionate response,” it’s telling that Jentleson never suggests some lesser alternative that McConnell would pursue that would be effective. How can Jentleson label something “hugely disproportionate” when he can’t propose anything that he would consider a more proportionate response?

More in Part 2.


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