Bench Memos

Law & the Courts

Thank You, Harry Reid!

In this week in which the White House has celebrated President Trump’s impressive record of achievement on judicial appointments, I’d like to pay tribute to the unsung hero who did more than anyone to make this all possible: former Senate Democrat leader Harry Reid.

Back in November 2013 when he was Senate majority leader, Reid pushed his fellow Democrats to abolish the filibuster (the 60-vote cloture threshold) for lower-court nominations. Never mind that Senate Republicans had defeated a grand total of seven cloture motions on President Obama’s nominees, while Reid himself had voted against cloture at least 25 times on 13 different nominees of George W. Bush.

As I explained back then, I welcomed the abolition of the judicial filibuster and its long-term consequences for the judicial-confirmation process. Above all, the abolition of the lower-court filibuster created the only promising scenario for real improvement in the courts: confirmation by a Senate Republican majority of the strong nominees of a Republican president. I further pointed out that Reid’s action paved the way for the abolition of the filibuster on Supreme Court nominees.

Imagine how very different things would have been if Reid hadn’t abolished the lower-court filibuster. It’s farfetched to think that Senate Republicans would have done so during Trump’s presidency. Recall that quite a few Senate Republicans were eager to restore the judicial filibuster after they regained control of the Senate in the 2014 elections. Recall further that back in 2005, when there were 55 Republican senators and when Republicans had for two years been unable to overcome the Democrats’ unprecedented campaign of filibusters, the Republican effort to abolish the filibuster failed. John McCain, Susan Collins, Lindsey Graham, and others instead struck the Gang of 14 deal. With the 51 senators in the Republican contingent in 2017-2018 and even with the 53 now, I don’t see how the votes would be there.

The abolition of the filibuster also meant that outstanding candidates, knowing that the process would likely be short and successful, would offer themselves up for nomination to the courts of appeals.

Without Reid’s action, I wonder whether President Trump would have a dozen federal appellate appointees by now, and the overall caliber of those nominees whom Democrats would allow to be confirmed would surely have been much lower.

More importantly, Reid’s action also made possible the Supreme Court confirmations of Neil Gorsuch and Brett Kavanaugh. By filibustering Gorsuch—a stellar candidate with strong support from liberals in the legal community—Senate Democrats signaled to senators like McCain that they wouldn’t let any judicial conservative get confirmed to the Supreme Court. They gave him and others no choice but to extend Reid’s action to Supreme Court nominations, and there is no way that they would have succeeded in doing so if Reid hadn’t already cleared the path. Perhaps Gorsuch would have been able to overcome the Democratic filibuster against him. But there is obviously no way that Kavanaugh would have been able to get 60 votes for cloture.

So, once again, a huge shout-out of thanks to Harry Reid!

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