Former Sen. Harry Reid, D-Nev., will lie in state in the Capitol next week. Unlike Bob Dole, R-Kan., another former Senate majority leader who recently passed away, no one is looking back on Reid’s tenure as a bygone era of comity.
As even his admirers acknowledge, Reid was an unapologetic, street-fighting partisan.
But that partisanship backfired. Reid’s biggest legacy was the elimination of the judicial filibuster in the Senate, which ultimately resulted in today’s 6-3 conservative majority on the Supreme Court. Senate Majority Leader Charles Schumer, D-N.Y., is now following in Reid’s footsteps – threatening to change the chamber’s rules, and weaken or eliminate the filibuster.
It seems Democrats have not learned from Reid’s mistakes. So, let’s review.
Reid laid the foundations for the Supreme Court’s conservative majority in 2001, when, as Senate minority leader, he launched a series of unprecedented filibusters against President George W. Bush’s appellate court nominees – most notably the eminently qualified Miguel Estrada for the U.S. Court of Appeals for the District of Columbia Circuit. No appellate court nominee had ever been successfully filibustered before. But, at Reid’s direction, Senate Democrats blocked Estrada and nine other Bush judicial choices, all of whom had majority support in the Senate.
Reid’s filibusters were so unprecedented that in 2005 the Republican majority briefly considered invoking the “nuclear option” – eliminating the judicial filibuster. Schumer said doing so would be “doomsday for democracy” and accused Senate Republicans of turning the Senate into the “rubber stamp of dictatorship.” Because “they can’t get their way on every judge,” Schumer thundered, Republicans want to “wash away 200 years of history” and “make this country into a banana republic, where if you don’t get your way you change the rules.”
But as soon as Democrats took back control, without a whiff of irony, Reid did exactly what Schumer had warned against. When Republicans followed the precedent Reid set, and filibustered some of President Barack Obama’s nominees, Reid eliminated the filibuster for all federal bench appointments except Supreme Court nominees.
The move paid some short-term dividends, allowing Democrats to fill the circuit courts with liberal judges. But Democrats soon paid a steep price for Reid’s breach of precedent. In 2014, Republicans retook the Senate. And when Justice Antonin Scalia passed away in the last year of Obama’s presidency, Senate Majority Leader Mitch McConnell, R-Ky., blocked a vote on his nominee to replace Scalia – Merrick Garland – keeping the seat open for the next president to fill.
For Democrats, the history of the Senate’s judicial malfeasance begins here. But had it not been for Reid’s serial breaches of precedent – first abusing the judicial filibuster and then eliminating it – McConnell would never have had enough support in the GOP conference to block Garland’s nomination.
Yet Reid was undeterred. He was sure Hillary Clinton would win the presidency, and in October 2016 – just weeks before the election – he boasted that the new Democratic majority would eliminate the filibuster for the Supreme Court, confirming Clinton’s nominees by simple majority vote. “It’ll be changed just like that, in my opinion,” Reid said, snapping his fingers. “So I’ve set that up. I feel very comfortable with that.”
It didn’t work out the way he planned. Clinton didn’t win. President Donald Trump nominated the unassailable Neil Gorsuch to fill Scalia’s seat. When Democrats filibustered his nomination, it united reluctant Republicans behind expanding Reid’s elimination of the judicial filibuster to Supreme Court nominees. If they had not tried to block Gorsuch, the filibuster would still be in place today. And there is no chance McConnell would have would been able to muster enough Republican votes to eliminate it to confirm Brett Kavanaugh in 2018 or Amy Coney Barrett in the final weeks of Trump’s presidency. Reid’s actions made their confirmations possible.
Yet, to the very end, Reid was unapologetic. In September, he wrote a final op-ed in the Las Vegas Sun arguing for the elimination of the filibuster for legislation as well. And now Schumer is pushing in just that direction. The only thing standing in his way is the foresight of two lonely, moderate Democrats – Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona – who recognize that Democrats will not hold the Senate forever and will regret eliminating the one institutional guardrail that forces negotiation, moderation and compromise.
Democrats should think back on all the conservative policies they delayed and derailed in the minority thanks to the filibuster – such as entitlement reforms, immigration reforms, lawsuit reforms, health care reforms, budget cuts, expanded gun rights, protections for unborn life and defunding Planned Parenthood – and then imagine all that and more being enacted by simple majority vote when Republicans win back the House, the Senate and the presidency – which they likely will in the not-too-distant future.
If Democrats like the Supreme Court that Reid wrought them, they will love a filibuster-free, McConnell-led Senate.