“Nuclear Mitch” McConnell may be destroying the Senate, but he’s not irrational. The senseless ones are the Democrats who refuse to follow the precedent he has set, so we can restore balance to our courts in the future.
Republicans have long understood that the courts are central to implementing their extreme, unpopular agenda. A Republican-controlled Congress and White House can’t repeal the Affordable Care Act? Ask the court to strike it down instead. Support for Roe v. Wade at a record high? Just tee up a dozen cases for the five Republican men on the Supreme Court to criminalize abortion for you.
So it should be no surprise that when Republicans have power, they manipulate and leverage it to the greatest extent possible to achieve their highest priority: packing the courts with narrow-minded judges who will favor corporations and the powerful, while turning back the clock on our rights, for generations.
For example, Republicans disregarded “blue slips,” a Senate tradition since 1917 that allowed senators to object to judicial nominees from their home states. They kicked the non-partisan American Bar Association out of its traditional role evaluating potential judicial nominees. And they rushed hearings and stacked them with multiple circuit court nominees to bypass scrutiny. When the Senate Rules got in their way, Republicans invented the “nuclear option” and gained leverage by threatening to change the Rules with a simple majority vote, instead of the required super-majority.
This isn’t a litany of norms McConnell has destroyed for Trump—it’s what Republicans did for George W. Bush. Breaking norms to pack the courts is what Republicans do and have been doing—regardless of Democratic efforts to restore any shattered practices.
I worked on judicial nominations for President Obama for nearly seven years, including as the lead nominations lawyer in the White House Counsel’s office for more than half of his presidency. I understood and sometimes even admired our impulse to try to rebuild norms and lead by example. To negotiate instead of confront. When Republican Senators used their blue slips—reinstated by Democratic Chairman Patrick Leahy—to reject well-qualified candidates for no reason or simply because “that’s not the lawyer I would nominate,” we would try again to find a consensus alternative. When Republicans even rejected nominees they had originally recommended, we would try again.
But while we were idealistically trying to depoliticize the judiciary, McConnell was busy using his power and leverage to politicize them even more by keeping judicial vacancies open as long as possible. Every day that Republicans could keep a Democratic-appointed judge off the bench meant more cases for narrow-minded Republican judges to hear instead. So McConnell lit more norms on fire—blocking Obama nominees to the D.C. Circuit solely to prevent a majority of its judges from being Democratic-appointed; filibustering district court judges; dramatically increasing the wait time that even non-controversial nominees languished on the Senate floor; and refusing to confirm packages of judges before recesses or even at the end of a Congress.
When McConnell regained control of the Senate, he practically stopped confirming Obama judges altogether. Most notably, he stole a Supreme Court seat by denying President Obama’s nominee Merrick Garland so much as a hearing, but McConnell was relentless throughout the entire judiciary. He only allowed two circuit court confirmations in 2015-16, the fewest in a two-year Congress since the 1800s. Overall, he kept 108 judicial vacancies open for President Trump—nearly double the number inherited by President Obama.
The frightening thing is that it could have been even worse, but in 2013, Democrats used their power to change the rules and counter McConnell’s unprecedented obstruction. If Democrats had not changed the rules, not only would Republicans have a commanding majority now on the D.C. Circuit, but Trump would have had dozens of additional lifetime judgeships throughout the country to fill.
Unfortunately, too many Democrats have not yet learned the lessons of the Obama administration. Some are apologizing for changing the rules in 2013—even though, as Harry Reid has recently reiterated, the choice was “[e]ither Obama’s presidency would be a joke or Obama’s presidency would be one of fruition.” And even though Republicans have rammed through 10 circuit court nominees over the objections of Democratic home-state senators, just a few weeks ago, Judiciary Ranking Member Dianne Feinstein inexplicably maintained, “it’s not too late to return to honoring the blue slip of home-state senators of both parties.”
Many people criticize Leahy’s decision to reinstate and enforce blue slips during the Obama presidency. In retrospect, it was probably naïve to expect that Republicans, so hellbent on packing our courts, would retain blue slips under a Republican president, although institutionalist defenders point to then-Chairman Chuck Grassley’s pledge to do so. Certainly, looking ahead, the future of blue slips should be clear: Fool Democrats once, shame on you. Fool us twice, shame on Senator Feinstein.
Democrats need to understand that once one side destroys a norm, it’s not a norm anymore—no matter how much we wish it were or try to reinstate it. So we must not self-impose a set of rules that will only apply to us. Blue slips are dead. ABA ratings are irrelevant. Hold hearings with multiple circuit court nominees, even if the Senate is in recess. This is the new normal.
Democrats also must follow the new norms that have been set around changing the rules and, when we regain control of the Senate, use them to restore balance to the courts with fair-minded progressive judges.
As far as I can tell, other than some angry floor speeches, there has been no Democratic response to this latest Republican rules changes—just as there was no Democratic response to Republicans changing the rules to confirm Supreme Court justices by a simple majority. But maybe this isn’t a bad thing. Maybe using the nuclear option to change the Senate rules is just the new normal.
Democrats must embrace this new world order and, as Senator Jeff Merkley has said, “We must be prepared to use a majority to restore constitutional values and pass democracy reforms returning power to the people.”
Anything else just doesn’t make sense.