Harry Reid, Republican Mastermind

Democrats can blame themselves for blowing up the judicial filibuster.

Senate Minority Leader Harry Reid pauses during a news conference on Capitol Hill in Washington, D.C., Nov. 16, 2016. PHOTO: ALEX BRANDON/ASSOCIATED PRESS

By The Editorial Board

Updated June 28, 2018 7:34 p.m. ET

Schadenfreude is overrated, but it is amusing to see Democrats apoplectic that Republicans might confirm a Supreme Court Justice with 51 Senate votes. Let’s review the tape on the Sage of Searchlight, Nevada, because Harry Reid made this moment possible by blowing up the filibuster for judicial nominees.

Democrats are in various stages of grief about the retirement of Justice Anthony Kennedy but the prevailing mood is rage. Democrats are insisting that the Senate not confirm a replacement until after the November election. The left is still furious that GOP Leader Mitch McConnell barred until after the 2016 election a vote on Merrick Garland, President Obama’s nominee to replace Antonin Scalia. They think Mr. McConnell should be “consistent” now.

But that Court opening came amid a presidential election, when Americans decide who will determine the direction of the courts for four years. No less than a quarter of Donald Trump’s voters said their reason was the Supreme Court. Hillary Clinton would have had her pick of nominees, and Mr. Garland or a more radical jurist would be on the Court. The real Democratic grievance as ever should be with Mrs. Clinton for losing.

Supreme Court confirmations ahead of a midterm election are routine. The Senate confirmed Justice Elena Kagan in August 2010, Justice Samuel Alito in 2006, Justice Stephen Breyer in 1994, and David Souter a month before midterms in 1990. The Great Scalia was confirmed in September 1986.

If Democrats are unable to stop Republicans from confirming a new Justice, they can also thank Mr. Reid. In 2013 the Democratic Majority Leader changed Senate rules on a party-line vote and ended the filibuster on appellate court and executive nominees. That allowed Democrats to pack the D.C. Circuit Court of Appeals and win some favorable rulings on Mr. Obama’s regulatory agenda.

A few on the left worried about eliminating the filibuster for Supreme Court nominees, particularly abortion groups that view Roe v. Wade as divinely inspired. But the precedent assured that the 60-vote check on High Court nominees would disappear; the only question was when. Mr. McConnell said on the Senate floor: “You’ll regret this, and you may regret this a lot sooner than you think.”

Democrats compounded the blunder when they united to oppose Mr. Trump’s first nominee, Neil Gorsuch. Replacing Scalia with Mr. Gorsuch didn’t alter the ideological composition of the Court. Democrats could have lent 60 votes to confirm Mr. Gorsuch and kept their powder dry for a filibuster fight for a replacement for Justice Kennedy, who everyone knew might retire.

The political pressure on the GOP to preserve the filibuster would have been intense, not least because conservatives are sympathetic to conventions that prevent change passed by narrow majorities. But no. Senate Democrats tried to block Mr. Gorsuch, and Senate Republicans responded by cashiering the filibuster for the Supreme Court too.

At the time of the Reid gambit we wrote that the “next GOP President should line up Federalist Society alumni for judicial nominations like planes waiting to take off at O’Hare International Airport.” The left apparently thought a Republican would never again be President.

Appeared in the June 29, 2018, print edition



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