What was Harry Reid thinking when he ended the Senate filibuster for federal judge appointments?
The year was 2013. Faced with a Republican minority in the Senate that was blocking many of President Obama’s federal judge appointments, Harry Reid made a bold move to end the filibuster for federal judicial nominees with the exception of the Supreme Court.
It not as though he wasn’t warned:
Senator Mitch McConnell stood on the Senate floor and issued a warning to the Democrats who then controlled the majority.
“I say to my friends on the other side of the aisle, you’ll regret this,” McConnell, then the minority leader, told them. “And you may regret it a lot sooner than you think.”
Now, with the Kavanaugh hearings, Democrats are experiencing that predicted regret.
So why did the Democrats do it? After all, the old rule had held for a long time for several reasons. The first was that, at least until recent decades, each party allowed the nominees of the other party to be approved unless there was some very egregious reason to block the nominee. This ended with the famous “borking” of Bork in 1987, and near-routine blocking of nominees had slowly gotten more frequent over the years. The second was that each party knew that if the rule was changed and the nuclear option invoked, they would regret it when they lost power.
So again—why did Reid do it?
I have some theories, although I don’t profess to know for sure.
The first is that he thought he may as well because the time had come, and if he didn’t do it—and get the advantage of it while Obama was president—the Republicans would do it if and when they came into power. I’m not really sure they would have, but it’s certainly possible, and then Reid’s reasoning would make sense.
The second possibility relies on something that’s quite different, which is that Reid may have calculated that the Democrats had the presidency locked up for the foreseeable future, so it would never come back to bite the Democrats for the simple reason that it would always be a Democratic president making the nominations.
Third, it may be that Reid had so little respect for the cojones of the Republicans in the Senate that he didn’t think they would extend the rule to SCOTUS nominees, the most important judges of all. If that was his calculation, it turns out that he was wrong.
My understanding was that the point of it all, was the packing of the DC Circuit court with Obama appointees, which was accomplished. Oh yeah, the other federal courts too, but that was secondary. I’d guess the order came down from the Oval office to Sen. Reid.
I like Neo’s point that the Dems thought they had the Presidency locked up for the foreseeable future. If they can reliably manipulate the IRS, the DOJ, the FBI, and maybe the hyper-surveillance activities of the NSA, then why worry? At the time, I found it very odd that Obama would go so ballistic over the Citizens United decision, that he would chastise the SCOTUS in his SOTU address. But it makes sense in this context.
I believe you have won the perfecta!
A bit OT, but you have to watch Ben Sasse at today’s Kavanaugh hearings.
https://www.youtube.com/watch?v=DcbOYl6Kutc
He doesn’t just disapprove of Trump, which Trump fans hate; he takes on Congress, which everyone should love.
Speaking of Bork – hat tip PowerLine
https://www.nysun.com/editorials/kavanaugh-and-bork/90372/
“Bork’s defeat, Mr. Pulliam reckons, was a “watershed event in judicial politics.” It defeated a conservative realignment of the court, and Justice Anthony Kennedy ended up in the vacant seat. Since then, Mr. Pulliam argues, the judicial-confirmation process has been “forever transformed” into an “ideological gauntlet.” Which is precisely why, in our view, so many of the high octane issues from that era vex us still.
And why the hearings that open tomorrow are so important. It is sometimes said that Bork was defeated on a party-line vote. Six Republicans nonetheless joined with Kennedy and another demagogic Democrat, Joseph Biden, to defeat Bork. One big question now is how many Democrats will cross the aisle to display at least some bipartisanship on Judge Kavanaugh and end the feud that began, on so many of the same issues, with Judge Robert Bork.”
I can answer that question about Dems crossing the aisle: none.
My question is: who were the 6 Republicans?
Don’t know what Reid was thinking but he did Republicans a big favor. Undoubtedly they would not have had the cojones to stop filibusters themselves. By ripping away the mask of comity on this issue he blocked McCain from putting together one of his patented gangs of Senators to screw the Republicans. I am still amazed they were able to act on the Supreme Court nominees given all the traitorous RINOs besides McCain that infest the Senate. So thank you Sen. Reid. You got to pack the DC circuit but we got Neil Gorsuch and hopefully Brett Kavanaugh.
I’ve always believed it was a combination of 2 and 3, but especially 2.
It’s evident that they really believed that they had the presidency locked up for the indefinite future. I think they believe that the demographic trends will guarantee a future constituency (I’m not 100% convinced of that…yet). Then there’s Obama’s easy run to a second term, coupled with the fact that they knew the next nominee had an unprecedented level of control of the hidden strings in DC. They know they have control all of the messaging coming through legacy media. All of this led them to believe that there was no going back to a reversal of power that they could envision.
Then they just begged DJT to run, thinking that a nomination would guarantee their supremacy for at least another decade. No going back to the past with this kind of power and control for at least the next 8 years. How could it be otherwise?
And then, reality hit them. That’s really why we now live amidst the tantrumocracy. They could never have seen it coming, and now it’s all panic, all the time.
That kind of hubris let them delude themselves into thinking that it was a good idea.
Where is Harry today, BTW? Someone should go request comment.
Harry Reid was well aware of the politicization of the administrative state, including the intelligence apparatus. Therefore, Reid could not imagine how anybody would overcome the obstacles that Obama was placing for future Republicans.
Also, Reid was thoroughly corrupt. A person so corrupted cannot imagine how anybody else would be less thoroughly corrupt. For Reid to imagine anybody who is not completely compromised is necessarily impossible.
I think it is option 2, with a small expansion. The Dems felt that the Right Side of History would dictate that not only would they hold the presidency, but also the Senate and eventually the House as the GOP would be relegated to a, at best, regional party.
AesopFan:
Easy-peasy to answer. It was about who you would expect: Chafee, R.I. Packwood, Ore. Specter, Pa. Stafford, Vt. Warner, Va. Weicker, Conn.
You may recall that later on both Chafee and Spector stopped being Republicans In Name Only and became real live Democrats (Spector had started political life as a Democrat, switched to Republican and then switched back, so you might say he re-ratted, in Churchill’s terminology). Weicker also left the GOP, although he remained an Independent rather than becoming a bona fide card-carrying Democrat.
By the way, 2 Democrats voted for Bork’s confirmation: Boren, Okla. Hollings, S.C.
I think it’s a combination of theory 3 and what TommyJay said: “My understanding was that the point of it all, was the packing of the DC Circuit court with Obama appointees, which was accomplished. Oh yeah, the other federal courts too, but that was secondary. I’d guess the order came down from the Oval office to Sen. Reid.”
Oh shoot…I’ll take “all of the above” for $400.
Obama had the advantage & wanted to exploit the “elections have consequences” “pen & phone” leverage. AND He was convinced no one would challenge & win against Obama or his anointed successor. AND The Rs had shown no testicular fortitude in donkey’s years…what had conservatives conserved?
All of the above…
And just let’s add another for fun…hubris plus stupidity. “Pride goes before destruction & a haughty spirit before a fall” I hope this leftist chaos-mongering bites them all with determined & repeated ferocity.
Reid didn’t expect the Republicans to be able to win the Senate in 2014 and hold it through now- that was Reid’s calculation. I am not convinced he thought the 2016 Democratic candidate was unbeatable as early as 2013.
You have to remember- the Republicans took the Senate in 2014 by winning all of the tossup races.
Reid thought Hillary would win. Big mistake.
And as a Nebraskan and American, I was proud of Ben Sasse’s statement today. He’s a smart guy. He goes with Trump in most cases, but some stuff he can’t abide. See, e.g., Trump’s tweet on the indictment of two GOP congressmen.
Those are good theories. I think the calculation was much simpler: Reid was concerned only about the short term. He wanted to get Obama’s appointments in to shape the judiciary as much as possible in the near term (with appointments for life), and he didn’t expect to be in the Senate long enough to suffer the downside consequences of the move.
Cornhead writes: “See, e.g., Trump’s tweet on the indictment of two GOP congressmen.”
Sasse tweets: “These two men have been charged with crimes because of evidence, not because of who the President was when the investigations began”
You and your senator are either hopelessly naive or your Never-Trumpism is blinding you to reality. As an exercise, why don’t you look into the judge’s comments on oh so pure Dept. Of Justice lawyers behavior in the Sen. Ted Stevens case.
As a further exercise for advanced students, look up the date of the upcoming election and report whether the Congressmen will be able to clear their names before it.
Expat, you’re on a roll with your excellent links. Spengler and Sasse, a lot of wisdom there.
Why did Harry do it? He believed the fix was in. With the DOJ/FBI/IRS/Intel community politicized how could the Dems lose the Presidency? He believed they couldn’t and wouldn’t. Then along came Trump and the deplorables.
I too vote for door # 2…
I thought this comment by Sen. Ted Cruz particularly astute; “We know every Democrat on this Committee is voting no. They’ve announced ahead of time so the documents don’t matter … what it is about is politics. It’s about Senate Democrats re-litigating the 2016 election.”
I expect he thought the Dems had this in the bag til the end of time. Bummmmmmmmmmmmmmmmmmmmer for them.
The most straightforward answer is they did it to get Obama’s nominee’s thru.
You may recall that later on both Chafee and Spector stopped being Republicans In Name Only and became real live Democrats
His son, Lincoln Chafee did. John Chafee remained a Republican until his death in 1999. He wasn’t affiliated with the French Canadian, Irish Catholic, or Italian population in Rhode Island. He’d followed a path from Deerfield to Yale College to Harvard Law School. He had a couple of ancestors who’d sat in the governor’s chair in Providence. One of his great-great-great grandfathers had been born in Cranston in 1754. People of John Chafee’s vintage who fit that description were seldom Democrats in New England.
As a further exercise for advanced students, look up the date of the upcoming election and report whether the Congressmen will be able to clear their names before it.
I think it’s a reasonable guess that the indictments were timed so that the two men would be unable to get off the ballot. Provisions of the Election Law of New York would have allowed Collins’ petition sponsors to have replaced him on the ballot had the indictment been issued just 3 weeks earlier.
The most straightforward answer is they did it to get Obama’s nominee’s thru.
While making it possible for Republicans to get their nominees through in the future. The question they are attempting to answer is why Reid thought the trade-off worth it. Previous occupants of his position had not.
(Personally, I’d like to see the filibuster eliminated, so Reid’s measure I see as a good start).
Art Deco:
I stand corrected on Chafee father vs. son.
Given the stark polarization between Dems and Reps, the filibuster was due to end in any event — otherwise almost no candidate could get through barring a supermajority.
I suspect Harry Reid and the Dems killed the filibuster because they were arrogant enough to believe the future was theirs long-term and because they wanted the short-term wins.
I’m glad the Dems get the blame, but I think this is where we were headed in any event.
Previous occupants were able to get their nominees thru.
As Reid pointed out at the time:
“In the history of the United States, 168 presidential nominees have been filibustered, 82 blocked under President Obama, 86 blocked under all the other presidents.”
FWIW, my thoughts run along these lines:
1. Let’s put away any delusional thinking that Democrats and liberals still believe in the Constitution. They don’t. Like their unholy godfather, President Wilson, they believe the Constitution is outmoded and inherently flawed to boot. Of course they know some Republicans and a large segment of the electorate do believe in it, but they only care about that for tactical advantage when they need it. They have taught children that the Constitution was written by evil slaveholders and exists to keep everyone who isn’t a white male oppressed. All that indoctrination hasn’t gone wasted. Not long after the 2016 election, a law professor, no less, expressed surprise that the Supreme Court had not declared the Electoral College unconstitutional yet. Let that simmer for a moment: he was surprised the Supreme Court hadn’t yet declared the Constitution unconstitutional. In our world, the Supreme Court derives its authority from the Constitution, not the other way around, but that’s not how lefties think in their world.
2. Democrats believe only in power. Nothing else. Therefore, whatever positions of power they hold are exalted as the most legitimate. When they held a clear Supreme Court majority — hell, unanimity back in the 1960s — Supreme Court rulings were “the law of the land”. When they held both houses of Congress, it was the Voice of the People. When they held the Presidency, all the President needed was a pen. But now that Republicans own the White House and Congress and are working on the Supreme Court too, why, any federal judge can simply call any and all policy to a halt. The Deep State bureaucracy is dedicated and they will hold this unlawful President accountable. Think about how that works: the bureaucracy, not even mentioned in the Constitution, stands above the President, unelected, unaccountable. Of course it wouldn’t be that way if a Democrat were president. Only power counts, so now the bureaucracy, still populated by Democrats, is the legitimate fountain of power. And they have set the stage for the legitimacy of a coup.
3. Republicans are always playing defense and are reasonably adept at yesterday’s battles. Even Donald Trump can’t turn the GOP’s corporate culture around in two years. Republicans are always responding to the last major inroad Democrats have accomplished. Why, we’ll take the courts back! And they are doing just that, sorta. But by the time the GOP gets them (assuming they do), legitimacy will have moved on to whatever branch of power they still hold, the courts will be delegitimized as a star-chamber dictatorship that doesn’t express the will of the people, and the polls will suggest we simply anoint Oprah Winfrey as our emperor-for-life.
4. Until Trump, Democrats had been looking for a permanent majority. Certain commenters at PJMedia persuaded me this fact a few years ago and it chilled me to the bone. Not only will they stage a coup when they think they can, they’ll do it and come out looking like the good guys.
I don’t know how this will all play out. It’s the Lord’s world, He’s the one who really runs it, and I’m just a believer who has no more idea of how the plot will turn out than the 3rd courtier in “King Lear” did. The 3rd courtier was the subject of an analogy by CS Lewis, that Creation itself is a vast play and God, the playwright, is watching the proceedings from the balcony. Not even important enough to be given a name, in a play where there are no sympathetic characters, the 3rd courtier is the only man in the entire play who commits an act of moral bravery and decency. He discovers the plot against the King, draws his sword and announces, not while I live! And is then summarily killed.
Our job, as believers, is to play our parts with honor, however important or unimportant they may seem at the time. All we know is that someday the play will end, and we will face our Playwright. The world is not permanent, but that doesn’t mean it isn’t important. Our souls are permanent, and the work we do on Earth puts its lasting marks on them. The world shall pass away, and the things of it, but the Word of the Lord abides forever.
Reformed Trombonist, well-stated!
It’s also more likely, that Reid did what was right to administrate effectively in this circumstance and used whatever political optics to his constituents as an advantage.
The Supreme Court is the court everyone fights over. The lower courts, get fought over too because we’ve made them battle grounds in our inability to have a shared legal or moral framework as a nation.
But the reality is, the courts are way understaffed. Cases I’m connected to of have retired judges sitting in on them who don’t even know anything about the law and have to be reminded continually. The retired judge serving, because the current judge is too old and sick to do handle it. And the retired judge only handles a few cases a year, leading to a massive backlog.
We need more judges. Reid did what was needed to make sure more judges could fill the ranks. He left the Supreme Court off the list, because that’s the one that’s not so crucial facing a backlog of cases. The nation is not hurting for lack of Supreme Court judges (one eventually gets nominated one way or another) but the lower courts aren’t getting filled fast enough.
So there you have it. Reality doesn’t have a whole lot to do with politics, but certainly politicians will make use of whatever benefit they can get.
It may be a simple as what anthropologists call “dominance.” Fancier terms include “bullying,” or “a sense of entitlement.”
Reid and the Democrats had sort of blanked that part of American culture from their worldview, that when you attack somebody they have the right to defend themselves. I strongly suspect that they thought that if the Republicans ever regained power, they would continue to submit to the Democrat “Right of Dominance.”
Unfortunately, with some RINOs, this has turned out to be correct.
We need more judges — or less bad laws?
Answer – we need less law, and more common sense.
But Dems don’t like a lot of common sense, so want to change humans, with laws & policies & guidelines & on-line mob shaming.
Reid probably ” calculated that the Democrats had the presidency locked up for the foreseeable future, “, especially since he saw how the DC corrupt Deep State was able to do illegal actions with impunity.
Much like the Catholic Church Bishops who engage in, or cover up for, homosexual sinful actions.
But the reality is, the courts are way understaffed.
I don’t doubt that. The smart money says the additional manpower would be allocated toward three tasks: processing more cases, allowing counsel to render proceedings more involuted, and allowing judges to leave work early. I suspect we could do with better rules of procedure and rules of evidence, as well as a disciplinary architecture that gets those potentates to work and to moving the calendar along. When you see procedural catastrophes like the Nidal Hassan case or the Jodi Arias case, you’re not looking at the issue of understaffing.
“In the history of the United States, 168 presidential nominees have been filibustered, 82 blocked under President Obama, 86 blocked under all the other presidents.”
Oh, I’m sure his tallies were compiled with absolute probity, just like his review of Mitt Romney’s tax returns.
Did Harry Reid ever sponsor legislation for reducing the number of executive appointments subject to congressional confirmation? Or revisions to the rules toward having judicial appointments and ambassadors examined by select committees chosen out of a hat?
Thanks for a great article and for the marvelous comments by readers.
The song linked below is spooky, scarily so. But it expresses to perfection what the Democrats were thinking when they ended the filibuster. As the article puts it they believed “Tomorrow Belongs to Me.”
https://www.youtube.com/watch?v=FN7r0Rr1Qyc
Never forget what lies behind our judicial squabbling. This is about Roe and the fetus, which like the Jew before has become a legal Untermesch, meaning subhuman. We should also never forget that in 1935 Nazi Germany legalized abortion for Jews and for eugenic reasons. Under its occupation, it did the same for Poles and Slavs. That’s why the genocide treaty bans method to prevent birth. Legalized abortion is about getting rid of people you do not like.
Note too that the only one in this scene in “Cabaret” who is not caught up in that madness is an old man who looks like a farmer. He’s liberalism’a typical “Trump voter.”
“Oh, I’m sure his tallies were compiled with absolute probity, just like his review of Mitt Romney’s tax returns.”
Absolutely, like cherry picking his arithmetic to obscure the fact that this trend started when the Democrats went after Bork.
Democrats gonna lie.
Note too that the only one in this scene in “Cabaret” who is not caught up in that madness is an old man who looks like a farmer. He’s liberalism’a typical “Trump voter.”
This video is a good retort to the gay lobby and it’s self-appointed tribunes.
I don’t think the old man looks like a farmer, just a generic old man. That aside, you’ll notice that the order in which they begin to sing is inversely associated with age. He’s the oldest one in the shots, and he’s the one who looks miserable. Imagine he’d been in some public square in Munich or Stuttgart or Cologne in August 1914 with people cheering themselves hoarse all around him. He’d seen how this can end. Recall the wag who once said, “old men do not grow wise; they grow careful”. One thing the old can bring to the table is perspective — if the young are willing to listen.
(For some of us, the abrupt shift in social attitudes among the young between 2000 and 2008 and the general disposition of people born after 1980 is quite alienating).
The Left does the damage and killing of the US Constitution while Americans sit around reading the “free press” and reacting to the damage by talking… that sounds sustainable right?
No wonder the Deep State looks at all these human slaves in the US as livestock.
It was item 3. Reid thought that he was Lucy and that every Republican was Charlie Brown, eternally running at the football unable to figure out the joke.
Reid’s lack of respect for Republican cojones was, most unfortunately, right on the mark. Grow a few pair, boys…
Reid made a long-term decision for short-term political considerations, and it should go down as one the stupidest and most short-sighted decisions in this century. His excuse was that Republicans were obstructing Obama’s nominees in unprecedented fashion, which turned out to be a crock.
http://www.theforvm.org/oh-love-your-guy-kavanaugh-your-one-blind-eye-text-nsfw#comment-390057
Did Reid make this decision before or after his little supposed “accident” with his exercise equipment that looks like it ultimately left him blind in one eye.
and it should go down as one the stupidest and most short-sighted decisions in this century.
Oh, go on. The U.S. Senate is a wretched institution and the filibuster and holds on nominees have been important components of its wretchedness. Whatever asininity was going through Reid’s mind, a partial excision of the filibuster was a good thing. Now lets get rid of the rest of it.
The Left does the damage and killing of the US Constitution while Americans sit around reading the “free press” and reacting to the damage by talking… that sounds sustainable right?
The filibuster is a parliamentary rule the Senate could eliminate tomorrow, not a component of the Constitution.
Never underestimate the power of dog logic. Why does a dog lick his own ca hones? Because he can. Reid cared for nothing except power, and how to best use it to get his way. He did it because he could.
Neo: I agree. I always assumed that it was #2: the DNC at that time thought that they had the presidency locked up.
The books below were about the overwhelming future dominance of Democrats. In 2014 I just skimmed through them because I wondered if they mentioned immigration as a factor. They did not. Perhaps illegal immigration was Reid’s ace in the hole which emboldened him. It’s still a factor, of course.
The Emerging Democratic Majority (2002)
by Judis, John B.
40 More Years – How the Democrats Will Rule the Next Generation (2009)
by Carville, James
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