It is just astounding to see Democrats arguing that had they just allowed a Republican minority to blockade the D.C. Circuit Mitch McConnell would have allowed Democrats to keep not one but two Supreme Court seats vacant. This is an absolutely insane thing for anyone who’s paid a modicum of attention to American politics in the last decade. And yet, amazingly, it’s a thing:
Donald Trump — or, more accurately, his conservative movement allies — have been restocking the federal courts with radical right-wing judges at a historic clip. And in that project, they’ve been aided and abetted by the Democratic Party’s reverence for senatorial courtesy. As chair of the Judiciary Committee for most of the Obama presidency,
Senator Patrick Leahy chose to honor the “blue slip” rule — an informal convention that allows any senator to veto the nomination of a federal judge to a court in his or her home state. Republican senators used this prerogative to coerce Barack Obama into appointing conservatives to the federal bench, and to hold other judicial seats open indefinitely, so that a future GOP president could fill them. Leahy took pride in helping the conservative movement in its quest to undermine his constituents political rights and policy preferences. “I have steadfastly protected the rights of the minority … despite criticism from Democrats,” Leahy boasted in 2012.
Alas, when the GOP regained power in 2017, it dispensed with the “blue slip” rule — and set about helping Trump fill all the seats that Leahy had reserved for him.
Last week, Minnesota senator Amy Klobuchar reflected on this history. She contemplated the GOP’s ongoing judicial triumphs, and the Democrats handling of judicial nominations in the Obama era, and concluded that her party had made a terrible mistake — by failing to allow Mitch McConnell to milk even more reactionary judges out of Team Blue’s fetish for rules:
Sen. Amy Klobuchar said Sunday she regrets Senate Democrats eliminating the filibuster for most judicial nominees in 2013, saying she would support bringing it back if Democrats retake the Senate in November.
“I would prefer to bring it back,” the Minnesota Democrat said on NBC’s “Meet the Press.”
The reason Democrats eliminated the filibuster for (non–Supreme Court) judicial nominees in 2013 was because the Republican Party was using the 60-vote threshold to block Obama from appointing non-conservative judges. Harry Reid’s willingness to fight this power-grab with one of his own modestly reduced the scale of Donald Trump’s most durable legacy. To suggest that Reid’s decision actually hurt the progressive cause, one has to believe that a unified Republican government would dutifully honor any senatorial norms that Democrats had courteously maintained — even when such fealty to convention undermined the conservative movement’s decades-long ambition to reshape the federal courts.
But we already ran this counterfactual: Mitch McConnell’s majority killed “blue slips” the second they got in its way! Furthermore, the idea that the GOP wouldn’t have done the same to the judicial filibuster is contradicted by its entire approach to governance over the past decade. This is the party that sacrificed America’s credit rating on the altar of an austerity program that (we now know) they didn’t actually believe in. It’s the party that wouldn’t hold a hearing for Merrick Garland, and which just packed state Supreme Courts in West Virginia and Arizona. To believe that Democrats can curb the GOP’s radicalism by reestablishing constraints on majority power when they retake the Senate is the definition of insanity.
And Klobuchar is far from the only Democrat beholden to such delusions. Her fellow blue-state senator Ed Markey has promised that the Democratic Party will restore a 60-vote threshold for Supreme Court nominees as soon as it retakes power. Meanwhile, House Minority Leader Nancy Pelosi has promised to reinstate “paygo” — a rule that requires Congress to make all of its new legislation deficit neutral (in other words, to “pay as you go”). This makes little sense in policy terms (it’s perfectly appropriate to finance certain public investments through borrowing, particularly when interest rates are still on the low side). But it makes even less sense in political ones. Pelosi ostensibly wants to live in a world where Republicans are allowed to dole out free lunches to their billionaire donors (by putting $1.8 trillion worth of tax cuts on the proverbial national credit card) while Democrats are forced to offset every dollar of aid to the poor, or investment in public goods, with politically painful tax increases.
One could hope that all this rhetoric is purely cynical. After all, it makes little tactical sense to advertise one’s intention to restrict minority rights while the other party still holds power. But Pelosi & Co. haven’t earned the benefit of presumptive Machiavellianism. By all appearance, their desire to rebuild the procedural norms that the GOP has broken is sincere. And that’s a big problem, since the health of our republic might well depend on their doing the opposite.
Republicans don’t care about Senate norms or deficits, and unilateral disarmament is insane. The next united Democratic government will definitely need to eliminate the filibuster and (as Erik said recently) the not use the pay-go rule. And serious judicial reform might be necessary as well.