Bench Memos

Law & the Courts

Reid Staffer’s Inane Attack on McConnell—Part 2

Continuing (and numbering serially from) my Part 1 post:

4. Former Reid staffer Adam Jentleson also claims that when Senate Democrats in November 2013 first abolished the filibuster for lower-court and executive-branch nominations, “they did so in the face of obstruction on a far greater scale than anything [Mitch] McConnell has faced as majority leader.”

This is a badly confused argument. For starters, as I detail here, Senate Democrats in November 2013 resorted to nuking the filibuster on lower-court nominations even though Senate Republicans had filibustered President Obama’s nominees much less than Democrats had done for President George W. Bush’s nominees. Harry Reid, for example, voted against cloture at least 25 times on 13 different nominees of George W. Bush, yet he was outraged that Republicans had defeated a grand total of seven cloture motions on Obama nominees.

Second, Jentleson recycles Reid’s lie that McConnell “had unleashed nearly 500 filibusters” on legislation and nominations combined. But back in 2013 the Washington Post’s Glenn Kessler awarded an earlier version of this claim three Pinocchios. As Kessler explained, Reid “often files cloture on multiple bills or nominations at once to speed things along even if no one is slowing things down”—and then tried to count his own cloture motions as Republican filibusters. As the Congressional Research Service <a href="http://www.senate.gov/CRSReports/crs-publish.cfm?pid='0E,*P,;

has explained, “Cloture motions do not correspond with filibusters.”

Third, what is most relevant to the abolition of the Supreme Court filibuster is the obstruction of Senate Democrats on the Gorsuch nomination.

5. It’s also worth having in mind that the real reason that Senate Democrats did not include Supreme Court nominations in their nuking of the filibuster in November 2013 is that abortion groups were afraid that that change would make it easier for nominees who opposed Roe v. Wade to get confirmed. As Roll Call reported back then:

There’s long been concern among some supporters of abortion rights about deploying the nuclear option for lifetime appointments to the federal bench, because a Republican White House could team up with a future GOP-led Senate to confirm judicial nominees hostile to the landmark Roe v. Wade decision.

Far better, the abortion groups calculated, to defer abolition until you were in the middle of a fight in which you knew that abolition would help a pro-Roe nominee.

As I observed at the time:

It would be funny indeed if folks on the Left who evidently rue Senate Democrats’ opportunistic decision in 2003 to inaugurate the filibuster as a weapon against judicial nominees were now to support an opportunistic rule change that would lay the foundation for making it much easier for a Republican president to appoint anti-Roe Supreme Court nominees.

I have to wonder whether Jentleson’s incoherent and incendiary attack on McConnell is driven by his desire to distract attention from his own role in assisting Reid in paving the way for the abolition of the Supreme Court filibuster.

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