In the lead-up to the confirmation of Justice Amy Coney Barrett last evening, Senate Democrats put on an angry show for their base, launch a late-night talkathon in which they challenged the legitimacy of the Barrett confirmation process, savaged Republican tactics, and made various implicit and explicit threats. Before we go any further, let's recall that Barrett's confirmation process is totally legitimate -- not only under the constitution, but based on overwhelming precedent. Republicans' supposedly rotten, awful, unfair tactics are actually just the upper chamber's majority acting as it typically has -- or as it recently has, following unprecedented and unilateral power grabs by Democrats. And yet, we're seeing tantrums like this:
Sen. Angus King (I-Maine) speaking on the Senate floor tonight:— Niels Lesniewski (@nielslesniewski) October 26, 2020
"I don't want to pack the court. I don't want to change the number. I don't want to have to do that, but if all of this rule-breaking is taking place, what does the majority expect? What do they expect?"
I don't want to explode a major governing institution, crushing its legitimacy. I really don't. But in light of all this fictional, entirely fabricated "rule-breaking" taking place by Republicans, what choice do I have? This is embarrassing. There has been zero rule-breaking. None. The big example that leftists have been pointing to is the Judiciary Committee "violating" its quorum rules to advance Barrett's nomination, despite a Democratic boycott stunt. But that was on the up-and-up, as well:
No, this is what happens when you just repeat things you read online.— (((AG))) (@AGHamilton29) October 26, 2020
That is the judiciary committee quorom rule (not a Senate rule), but the committee chair can overrule (otherwise minority just wouldn't show up every time they wanted to block a nominee from being advanced). https://t.co/HExQ3Npemj
They actually did appeal! Schumer did on Thursday as a point of order to get the chair to set aside the Judiciary vote and was ruled out of order, meaning the committee vote was ruled legitimate and within the rules. Then the ruling was upheld by a floor vote.— Matt Whitlock (@mattdizwhitlock) October 26, 2020
If the minority party could thwart any judicial nomination by refusing to show up in committee, they'd do so as a matter of course. A majority of the committee was present and voted to proceed, in accordance with Senate rules. Democrats didn't even have one member present to object. Democrats' unserious boycott was abnormal; Republicans' vote to move forward was not. It's also untrue that Republicans broke their own "rule" from the 2016 Merrick Garland standoff. Yes, some individual senators made sweeping statements that render their 2020 actions hypocritical (several have justified their about-face by citing the truly egregious conduct of the opposition during the Kavanaugh circus). But the official stance of the majority was much more carefully-framed and hewed to the historical norm. Mitch McConnell addressed all of this in a speech over the weekend, which we amplified yesterday.
Arguably, the lone true GOP escalation was the decision to apply Harry Reid's "nuclear option" to Supreme Court nominees, though Democrats left McConnell and company little choice when they detonated yet another unprecedented and unilateral escalation by launching the first partisan filibuster against a SCOTUS nominee in US history. Absent the Reid Rule -- which came into existence in 2013 when Senate Democrats couldn't countenance Republicans using their previous unprecedented, unilateral escalation against them -- the last seven years would have looked quite different. Over time, frustrated Republicans would consider becoming the aggressors, then back away. That's why we got the "Gang of 14" compromise rather than the nuclear option during the second Bush administration. That's why filibusters were mulled but not attempted against Elena Kagan and Sonia Sotomayor. That's why President Trump's frequent demands that McConnell eliminate the legislative filibuster were rebuffed every time.
But now a guy like "independent" Sen. Angus King, a liberal Democrat from Maine, is pretending that the GOP playing a few years of hardball under Democrats' own standards is forcing him to retaliate. This would be the same "independent" senator who joined nearly all of his Democratic colleagues to bless Reid's nuclear event, which was endorsed by then-Vice President Joe Biden. This would also be the same "independent" senator who said just last year that he hopes the Senate "would not ever, ever consider doing away with the filibuster, which is basically the whole premise of the Senate." It's ludicrous that any Democrat who went nuclear seven years ago would have the temerity to blame Republicans for abiding by the standards they constructed. But these people are power-hungry hacks, so they're feigning victimhood and claiming to be "radicalized" by the GOP employing Democrat-invented tools for a handful of years (during which voters gave them unified control of the presidency and Senate):
I think people underrate the extent to which rank and file senators have been procedurally radicalized over the past five years. When King was elected it was unclear if he'd caucus with Democrats or Republicans. Now he's openly indicating he could support court expansion! https://t.co/3AIrDhKAGA— Jacob Rubashkin (@JacobRubashkin) October 26, 2020
Sounds like King and his fellow "rank and file" Democrats (let's not act like King has been anything other than a reliable leftist for years, having nuked the filibuster with Reid) need a history lesson or two. The trouble is, most of them likely know they're wrong on the facts. They don't care. They're trying to lay the groundwork for their next arrogation of power, so empirical reality and personal culpability don't matter to them. Of course, they're frustrated by the immense and important progress President Trump and Senate Republicans have made on this front over the last four years. It wasn't supposed to be this way. But it is. Remember, they had no concerns whatsoever when President Obama reshaped the federal judiciary, partially thanks to Republicans largely avoiding scorched-earth tactics, and partially thanks to Democrats' embracing the same. A review from Politico in mid-2016:
Obama has already appointed 329 judges to lifetime jobs, more than one third of the judiciary, and they’re already moving American jurisprudence in Obama’s direction. He got two left-leaning women onto the Court: Sonia Sotomayor, the first Hispanic justice, and Elena Kagan, his former solicitor general. He also flipped the partisan balance of the nation’s 13 courts of appeals; when he took office, only one had a majority of Democratic appointees, and now nine do.
Republicans didn't like it, used some Democratic tactics to slow things down, and occasionally squawked about some (abandoned) lower-level power plays. But during the Obama years, Democrats largely "won the judicial wars," to borrow from Politico's headline. As Obama flipped the partisan balance of more than half of the nation's circuit courts of appeals, Republicans didn't vow radical "reforms," nor did they pursue them after winning unified control of government in 2016. Republicans theoretically could have packed lower courts or added seats to the Supreme Court when they controlled everything in 2017 and 2018, but such wild acts weren't even considered. As mentioned above, congressional leaders shot down Trump's periodic importuning to end the filibuster altogether. What Republicans did was exploit all the new power Democrats had handed to them, thanks to their prior escalations, and leaned into a relentless mission to fill as many vacancies as possible.
You see, Democrats aren't seething because Republicans are actually violating precedent or breaking rules. They're angry because Republicans are exercising their power unapologetically while forcing powerless Democrats to lie in the bed they've made over the last three-plus decades. And that misplaced frustration is growing so acute that they're now overtly flirting with a thermonuclear option, from which there would be no coming back. Sen. Ben Sasse admonished his Democratic colleagues on this subject matter yesterday:
[Democrats] are out of arguments, but they’re not out of soundbites. And one of the things that’s true in American life is that with freedom of speech, even if your sound bite is nonsense, you have the right to be wrong and you have the right to say it. So, given that we’re gonna be here all day, it’s all over but the shouting, it seems like we don’t have to play the same speeches on repeat over and over again. We can actually do two things and I think that we should spend a little bit of time reviewing how we got here and a little bit of time talking about where we go next. First, we should explicitly name the Senate’s most valuable player and as somebody who is a junior member of this body, I don’t want to cross Cocaine Mitch, the gentleman from Kentucky, but the truth of the matter is the Senator most responsible for the confirmation proceedings we have happening on the floor today is not from Kentucky. The Senator most responsible for the fact that Amy Coney Barrett’s gonna be confirmed tonight, the Senator most responsible for the confirmations of Neil Gorsuch and Brett Kavanaugh, is the former Democratic leader from Nevada, Senator Harry Reid.
It was Senator Harry Reid that blew up the filibuster for judicial appointments in November of 2013, and the rest of how we got here is just a footnote on that history. Leader McConnell walked through some of this history on Friday and Saturday, how at every turn, from Robert Bork to Brett Kavanaugh, many progressive progressives have in an effort to try to secure policy outcomes in the Supreme Court, then escalating the confirmation wars. I won’t repeat all of that history from Friday and Saturday here, but when Harry Reid went nuclear, he set the Senate on a path to this day...There’s simply no comparable event with November of 2013 when Harry Reid decided to make this body simply majoritarian on confirmations. So, where do we go next? It is no secret that some of my colleagues on the left are itching to blow up the legislative filibuster.
I'll leave you with the push for "reform" gaining some steam:
??Ted Kaufman signed this. Biden's longtime chief of staff who is leading the transition. https://t.co/08tTniatCO— Alex Thompson (@AlxThomp) October 25, 2020
This would likely require a constitutional amendment, which is why many outcomes-driven leftists prefer obliterating the filibuster in order to pass legislation adding seats to the Court -- a radical, norm-crushing, unpopular scheme. The only way to guarantee that none of these power grabs can move forward under a potential Biden administration is to help Republican senators and Senate candidates win in November, especially in key states like Alabama (defeat Jones), Alaska (re-elect Sullivan), Arizona (elect McSally), Colorado (re-elect Gardner), Georgia (re-elect Perdue and elect a Republican in the other race), Iowa (re-elect Ernst), Kansas (elect Marshall), Maine (re-elect Collins), Michigan (elect James), Minnesota (elect Lewis), Montana (re-elect Daines), North Carolina (re-elect Tillis), South Carolina (re-elect Graham), and Texas (re-elect Cornyn).