This week, in all likelihood, Senate Majority Leader Mitch McConnell will put the judicial filibuster to death. But when he does, it will not be accurate to say he is triggering the "nuclear option," because Democrats already nuked everything that could be nuked in 2013. McConnell and Republicans are really just clearing away the rubble.
It also would not be appropriate to blame "both sides" and suggest that the Senate sank to its current nadir because the two parties took turns to drive it down. Nearly every outrage in the judicial wars of the past two decades has been perpetrated by Democrats, and mostly Minority Leader Chuck Schumer and his predecessor Harry Reid.
News media, infatuated with "both sides" journalism, is often either unable or unwilling to accept that there is a great partisan imbalance in many aspects of politics. So it's worth recounting that Democrats did 90 percent of the work in breaking down the bipartisanship that used to accompany judicial nominees. More specifically, Schumer brought us to this point.
We could begin with Ted Kennedy's floor speech attacking Robert Bork, or the Democrats' character assassination of Judge Clarence Thomas. But more relevant to today's fight was the invention of the partisan judicial filibuster in the Schumer era.
After the 2002 elections, when Republicans took back the Senate, first-term Sen. Schumer led the charge on this innovation of filibustering lower court nominees. He started with Miguel Estrada's nomination to the U.S. Court of Appeals for the D.C. Circuit, where Schumer could find a logical-sounding but dishonest reason to prevent a vote. The senator argued that he would allow an up-or-down vote on Estrada when Estrada turned over the confidential memos he had produced as solicitor general.
This was literally asking Estrada to breach attorney-client privilege, and every living former solicitor general signed a letter declaring Schumer's request inappropriate. It's anyway disingenuous, for Schumer knew he was making a demand that would have to be refused. Democrats asked for the material because it clearly would never be produced. It was a transparent tactic to block conservative judges from the circuit courts, because their appointments might set them up for the Supreme Court someday.
Democratic staffers admitted as much in a memo that was leaked to the Wall Street Journal. The liberal groups who were calling the shots had instructed Democrats whom to filibuster. The groups "identified Miguel Estrada (D.C. Circuit) as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment."
Democrats swiftly escalated from there to filibuster almost every circuit court nominee they could. Schumer had a mendacious excuse at this stage, too. He said they weren't filibustering all nominees, just "controversial nominees," by which he meant any judge who couldn't get 60 votes. It set a 60-vote threshold for all judicial nominees. It was another escalation, and again Schumer led the charge.
In 2006, Democrats took back the Senate, and beginning in 2009, a Democratic president began nominating judges. Democrats then began gnashing their teeth when Republicans responded in kind, filibustering every Democratic judge they could. Again, this was only what Schumer had begun. So Democrats escalated again.
Senate Majority Leader Harry Reid in 2013 brought filibustered Obama court nominees to the floor. Republicans voted against cloture. So Reid said he would change the rules so that it took only 51 votes instead of 60 to invoke cloture on a judicial nominee.
But under Senate rules, it takes a two-thirds supermajority, 67 Senate votes, to change Senate rules. Blasting this two-thirds requirement was the real nuclear bomb. Reid moved to overturn the ruling of the parliamentarian that it took two-thirds to change the rules.
With a majority vote, then, Democrats ruled that 51 equals 67. Reid didn't just nuke the judicial filibuster but nuked the idea that the Senate has rules beyond what the majority wants. And rules that the simple majority can change hardly count as rules.
Reid and the Democrats in 2013 changed the rules only on lower court nominees. And so one could say that Republicans this week will be escalating the warfare by expanding this regimen to Supreme Court nominees. But that's a quibble. There is no logical reason to treat lower court nominees and Supreme Court picks differently.
Again, the real nuclear option was Reid's precedent that a 51-vote majority could change Senate rules.
By 2014, the nuclear option had put President Obama on pace to appoint a record number of federal judges. But when Republicans retook the Senate, they applied the brakes, blocking more than two-thirds of his nominees in his last two years as president. The net result was that over his eight-year term, Obama had basically the same number of judges confirmed (329) as had his Republican predecessor (327). The similarity between those two numbers is no accident. By letting through just as many judges as George W. Bush had confirmed, they prevented Reid's party from deriving a lasting benefit from his decision to break the Senate minority's rights.
It was during this same period that Republicans went a step further. Their decision to ignore the Supreme Court nomination of Merrick Garland to replace the late Justice Antonin Scalia, while neither unprecedented nor destructive of Senate rules, was an escalation in the judge wars, albeit in line with what Democrats had advocated in the past. Sen. Joe Biden, after all, said in 1992 he would insist on upholding the "tradition against acting on Supreme Court nominations in a presidential year."
Democratic cries this week that there is something unfair or untoward about invoking the "nuclear option" are ridiculous. Democrats fully intended, if they had won the election, to keep going. We know this because they said so. When he thought his party would control the White House and the Senate and that he would be vice president, Sen. Tim Kaine, D-Va., promised to abolish the Supreme Court filibuster as well.
"We will change the Senate rules to uphold the law, that the court will be nine members," Hillary Clinton's running mate said just days before his ticket's historic loss. "If these guys think they're going to stonewall the filling of that vacancy or other vacancies, then a Democratic Senate majority will say, 'We're not going to let you thwart the law.'"
Tellingly, when Reid left the Senate and Democrats had to pick their new floor leader, they picked the man who had escalated the judge wars to where it is today.
Now Democrats have pledged to filibuster the obviously qualified Neil Gorsuch on laughably absurd grounds. They have made it plain that no judge to the right of Anthony Kennedy would go unfilibustered.
It is sad to see Senate comity and consensus-building fade away, but that regret is no reason to lie that both parties are equally to blame. Republican aggression in this war has almost always been a mere continuation of practices begun by Democrats.