The Corner

Law & the Courts

How Democrats Overreached on Kavanaugh

Democrats on the Senate Judiciary Committee, September 28, 2018. Front row (from left): Amy Klobuchar (D, Minn.), Chris Coons (D, Del.); (back row): Cory Booker (D, N.J.), Kamala Harris (D, Calif.), and Richard Blumenthal (D, Conn.) (Jim Bourg/Reuters)

Saying that a given political party has overreached is perhaps one of the most tired forms of political commentary. Nevertheless, it can sometimes be true, and it’s arguable that Democratic overreaching in the judiciary wars paved the way for Brett Kavanaugh’s confirmation.

When Harry Reid detonated the nuclear option in 2013 for non–Supreme Court nominations, he helped Barack Obama confirm more judges, but, in doing so, he did grave damage to norms of the Senate. Reid also provided a precedent for Mitch McConnell’s decision to go nuclear on the Neil Gorsuch nomination in 2017.

In retrospect, the Reid precedent and the decision of Democrats to go full “resistance” in 2017 dramatically weakened the hands of Democrats heading into the Kavanaugh nomination. Because Senate Democrats were able to sustain a party-line filibuster against Gorsuch (the first ever successful partisan filibuster of a Supreme Court nominee), they goaded Mitch McConnell into going nuclear. (There were potentially other ways around the filibuster — such as using Rule XIX — but Republicans followed the example of Harry Reid instead.) Fresh off the 2016 election, Senate Republicans were not going to let Scalia’s seat stay vacant.

However, if Democrats had not tried to sustain a partisan filibuster against Gorsuch, the 60-vote filibuster for Supreme Court nominees would have remained in place — and it is far from clear that Republicans would have been able to nuke the filibuster to confirm Kavanaugh. Republicans have only 51 votes in the Senate; just two defections would have ensured the defeat of the nuclear option. Lisa Murkowski supported the nuclear option in defense of Gorsuch’s confirmation, but she would almost have certainly opposed it for Kavanaugh (she did, after all, vote against cloture for him). Susan Collins and Jeff Flake supported the nuclear option in 2017, but they very well might have opposed it in 2018. While Republicans could have tried to maneuver around this filibuster (again, perhaps by using Rule XIX), Democrats would nevertheless have had a greater chance of defeating the Kavanaugh nomination if the filibuster were still in place. Relentless rather than strategic opposition limited the tactical options for Democrats.

This has implications for future political debates. Some on both the left and the right still call for the Senate to end the filibuster for legislation. However, based on what has happened with nominations, ending the filibuster for legislation will likely only make the Senate more polarized. A 51-vote majority being able to rule absolutely over the Senate will dramatically weaken the power of senators in the minority — who will further escalate partisan histrionics in order to compensate for the power that they have lost. The constant parade of “Spartacus moments” might risk creating a feedback loop of polarization, as the bread-and-circuses spectacles of performative outrage further pit Americans against each other. The Senate is an institution of compromise, and the filibuster has played an important role in that legacy. In a divided time, mechanisms for finding a common ground become even more important.

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