Harry Reid’s decision to use the “nuclear option” and change Senate rules to push through Barack Obama’s nominees for district and appellate-court positions has been rightly mocked as one of the more glaring political blunders of the past two decades. That decision, which he said “had to be done,” has allowed Mitch McConnell to confirm nearly 160 of President Trump’s district-court nominees and 53 circuit-court nominees in a single term. It also set a precedent that made it easier for McConnell to scrap the filibuster for Supreme Court nominees when Democrats refused to vote for cloture on Neil Gorsuch’s nomination.
That refusal, spearheaded by Reid’s successor as the Democratic leader in the Senate, Chuck Schumer, has proven to be an almost equally moronic move. Gorsuch was always going to be confirmed. His impeccable credentials, impressive performance in his confirmation hearings, and the Republican majority in the Senate ensured that he would be elevated from his position as a judge on the Ninth Circuit. It was silly of Schumer to force McConnell to use the nuclear option in a context in which McConnell’s case for doing so was eminently reasonable. It didn’t appear as though McConnell was eager to break norms, it just seemed like he did what he had to do to confirm a qualified nominee over the minority’s obstructionism.
If Schumer had saved the filibuster for the fight over Brett Kavanaugh’s nomination, he would have at least put increased political pressure on McConnell — considering the allegations levied against Kavanaugh — and possibly prevented Republicans from confirming Kavanaugh. He may even have helped Democrats gain instead of lose Senate seats in 2018. Moreover, the coming battle over Ruth Bader Ginsburg’s seat might have a much more favorable backdrop for Democrats if Schumer had adopted this course.
Schumer should remember these follies as he warns that “nothing is off the table” if President Trump and Republicans in the Senate exercise their constitutional powers to nominate and confirm a new Supreme Court justice. He would be wise also to recall that they will be moving forward thanks to Reid and Schumer’s own miscalculations.