That meant that the filibuster empowered Republicans, and the courts—not exactly filling with Obama nominees, thanks to that 60-vote threshold—validated them further. The travails of the ACA proved that, and progressive journalists recorded it all. In a long reported piece on how the act’s mandate became controversial, Washington Post columnist Ezra Klein credited the rulings of conservative judges. He quoted law professor Orin Kerr, who explained that the conservative argument that the mandate was unconstitutional didn’t pass the laugh test until “there were two conservative district judges who agreed with the argument, largely echoing the Republican position and the media coverage.”*
The 5–4 victory that saved Obamacare (while giving states freedom to opt out of a Medicaid expansion) calmed progressives, but only briefly. Because the mandate was upheld as a tax, McConnell set about planning to undo the entire law with only 51 votes during the budget reconciliation progress. “We were prepared to do that had we had the votes to do it after the election,” McConnell told National Journal.
To Democrats, to progressives, this sounded like yet more proof that Republicans responded to defeat by asking for more favorable rules. The filibuster became part of a litany—gerrymandering that helped the GOP hold the House, voter ID/polling place laws that cut into minority and youth votes, circuit courts that undid Democratic laws. The D.C. circuit, currently split 4–4 between Democratic and Republican appointees, had ruled against the administration’s recess appointments, ruled against financial regulations, and ruled against aspects of the ACA. Democrats knew exactly why Iowa Sen. Chuck Grassley was leading filibusters against any nominee to fill the three open D.C. seats. It’s only fitting that Reid broke the judicial filibuster today by filling them.
But Reid never expected to be here making that call. In 2005, according to Democrats, they really did want the judicial wars to taper off. “There was still a reservoir of good will that members on both sides of the aisle could dip into to try and get to a compromise,” says Manley. “That reservoir just isn’t there anymore. Republicans don’t care about the institution. All they want is power.”
Republicans didn’t try to convince Democrats otherwise. Their closing, baffled arguments against the filibuster reform (as recently as last week, Republican aides were confident the vote wouldn’t happen) were a series of threats, varying in their politeness. “When we have the majority, when we have a Republican president, we will put more people like Scalia on the court,” said Grassley when asked to envision a post-nuclear world. “There’s not a doubt in my mind that if the majority breaks the rules of the Senate to change the rules of the Senate with regard to nominations, the next majority will do it for everything,” said McConnell.
Progressives know that. They expect that. They didn’t demand the change because they’re ignorant about the 2014 polls. If they lose that election, they’ll have given themselves a year to confirm judges and executive nominees. If they lose the presidency in 2016, they’ll have empowered a Republican to put judicial robes on whichever Federalist Society member he wants. But they expected Republicans to break the filibuster anyway. “I know that if there is a Republican president and a Republican majority,” Sen. Merkley said this month, “they will force up-and-down votes, because they demonstrated their commitment to that principle in 2005.”
Merkley’s opponents never really reckoned with his logic. Progressives did not consider filibuster reform a “risk.” They saw a way to kick over an impediment to majority rule, before Republicans took power and kicked it over themselves. They’re trading something that might have brought “consensus” for something that empowers the party that wins elections. And they’re fine with that.
Correction, Nov. 23, 2013: This article originally misspelled the name of professor Orin Kerr. (Return.)