Bench Memos

Law & the Courts

Dana Milbank’s Unhinged Attack on McConnell

More (beyond this post) on Dana Milbank’s vicious hit piece on Senate majority leader Mitch McConnell:

Back in November 2013, in a surprising departure from his opportunistic partisan smearing, Milbank directed some of his hyperbolic rhetoric against then-Senate majority leader Harry Reid and his fellow Democrats. By abolishing the filibuster of lower-court and executive-branch nominees, Milbank argued, Reid and company had “broken” the Senate:

If Congress wasn’t broken before, it certainly is now. What Reid and his fellow Democrats effectively did was take the chamber of Congress that still functioned at a modest level and turn it into a clone of the other chamber, which functions not at all. They turned the Senate into the House.

Milbank predicted that Senate Democrats “will come to deeply regret what they have done.”

Now that McConnell has taken the additional step of abolishing the Supreme Court filibuster, Milbank accuses him of being the man who “broke America.” This charge is ridiculous.

For starters, as Milbank recognized three-plus years ago, Reid laid the foundation for abolition of the Supreme Court filibuster. Reid and other Democrats bragged that Democrats would abolish the Supreme Court filibuster if and when the occasion arose, and Reid said that he was “fine” on Republicans doing so. When Democrats were so incredibly stupid as to force the issue on the Gorsuch nomination, what other possible choice was there?

The abolition of the nominations filibuster, through the combined actions of Reid and McConnell, doesn’t “break” the Senate, much less America. As I’ve explained (in part in points 2 and 3 here), the use of the partisan filibuster against judicial nominees is a departure from longstanding Senate practice, and the abolition of the nominations filibuster restores and protects that longstanding practice. (And, yes, I said the same thing back in November 2013.)

Further, abolition of the Supreme Court filibuster does not present any incremental threat to the legislative filibuster. The long-settled tradition of the Senate has been to treat debate over nominations and legislation very differently. The legislative filibuster owes its continued existence not to any formal obstacle that would prevent a Senate majority from abolishing it but rather to a widespread consensus that it is valuable and serves the interests of senators. Defenders of the legislative undermine their cause by wrongly insisting that there is some sort of linkage between the nominations filibuster and the legislative filibuster.

Far from being the man who “broke America,” Mitch McConnell is the man who has done more than anyone to rescue the Supreme Court. That, I suspect, is what Milbank really objects to.


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