Appearing on Meet The Press this past Sunday, Sen. Amy Klobuchar (D-MN) says she would have preferred it if Democrats had unilaterally disarmed in a struggle for control of the federal judiciary which will determine the nature of the Constitution itself.
— Seung Min Kim (@seungminkim) September 2, 2018
Klobuchar did show some nuance in her remarks on the filibuster. The 2013 decision to allow non-Supreme Court nominees to be confirmed by a simple majority vote, Klobuchar explained to host Chuck Todd, “happened because we were so frustrated because President Obama wasn’t able to get his nominees.” But she now claims that the decision to reform the filibuster five years ago was an error.
“Frustrated,” however, is a bit of an understatement. Prior to 2013, all presidential nominees effectively could not be confirmed without a 60 vote supermajority in the Senate. Led by then-Minority Leader Mitch McConnell (R-KY), Senate Republicans wielded the filibuster more aggressively than any Senate minority caucus in American history.
Among other things, McConnell’s caucus initially refused to confirm anyone to lead the Consumer Financial Protection Bureau or the National Labor Relations Board, maneuvers that would have effectively denuded those agencies of much of their authority and left much of American labor law unenforceable. Democrats eventually invoked the “nuclear option” — a procedural maneuver that allowed them to change the Senate rules by a simple majority vote — after Republicans tried to block three Obama nominees to the United States Court of Appeals for the District of Columbia Circuit, the second-most powerful court in the country.
Five years later, Klobuchar’s frustration is understandable. Now that they are able to confirm any judge with a simple majority vote, Republicans stopped hunting for “stealth” nominees with ambiguous records, and started naming known conservative hardliners like Neil Gorusch and Brett Kavanaugh. It’s easy to look at the Dickensian future men like Gorsuch and Kavanaugh envision for America and regret that there is no longer a way for Democrats to block such men.
But there never really was a way to keep hardline conservatives off the federal bench. In the alternative universe where Democrats did not nuke the filibuster in 2013, Republicans almost certainly are confirming whoever they want to the courts right now. The only difference is that they were also able to put Republicans on those three DC Circuit seats.
The idea that the “nuclear option” could be used to ease the judicial confirmation process was first floated by two conservative lawyers in 2004, in an article entitled “The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster.” This article, by lawyers Martin Gold and Dimple Gupta, was published in the Harvard Journal of Law & Public Policy, a journal affiliated with the conservative Federalist Society.
Gold & Gupta proposed a complicated series of objections, rulings-by-the-chair, and floor votes that would effectively change the Senate rules to allow judicial nominees to be confirmed by a simple majority vote. Democrats eventually embraced this tactic in 2013, and used the process laid out by Gold & Gupta to reform the filibuster.
But in 2004, when Gold & Gupta offered their proposal, Republicans controlled the Senate and were inclined to turn to something like the nuclear option in order to stop Democrats from filibustering a handful of President George W. Bush’s nominees. Republican frustrations came to a head in 2005, when Senate Republicans threatened to invoke the nuclear option themselves to push Bush’s nominees through the Senate.
The filibuster was saved, however, by one of the most lopsided deals in the Senate’s recent history. In what was known as the “Gang of 14” — so named because it was brokered by a block of seven Democrats and seven Republicans — Democrats capitulated almost completely to their GOP counterparts. Republicans got nearly everything they wanted out of this deal, and also got to keep the filibuster intact for most of the Obama presidency.
By its explicit terms, the Gang of 14 deal concerned five nominees. Democrats in the “gang” agreed to confirm three nominees, Janice Rogers Brown, William Pryor, and Priscilla Owen, while leaving two other nominees, William Myers and Henry Saad, to twist in the wind.
At the time, however, Democrats viewed Brown, Pryor, and Owen as among the three most offensive nominees in Bush’s slate of potential judges, while Saad and Myers were viewed as relatively innocuous. Brown, in particular, was viewed as especially extreme.
Among other things, Brown labeled the New Deal a “socialist revolution,” and likened Social Security to intergenerational cannibalism — “[t]oday’s senior citizens blithely cannibalize their grandchildren because they have a right to get as much ‘free’ stuff as the political system will permit them to extract.”
Republicans, in other words, were prepared to nuke the filibuster in 2005. They only relented after Democrats agreed to confirm Bush’s single most radical nominee. Democrats had two choices — allow the filibuster to die, or give up their ability to use it for anything more than symbolic objections.
And so it would have been if Democrats had not nuked the filibuster in 2013. Maybe Republicans would have invoked the nuclear option to confirm Trump’s nominees. Or maybe they would have brokered a deal where Democrats capitulated in the same way they did in 2005. But one way or another, Republicans would have gotten their judges through.
At some point in the future, Democrats may again control Congress and the White House. When that happens, their ability to get literally anything done will depend on their willingness to tear down the filibuster entirely. Klobuchar’s caution will force those future Democrats to run for reelection with no accomplishments and nothing to tell their voters. That is a recipe for electoral defeat.