No one can agree how the Judicial Wars started. Most pundits sigh deeply and start with the defeat of Robert Bork, who wasn’t actually filibustered—only 42 senators voted for his 1987 nomination. Others pick up the story in the 1990s, when Republicans ran the Senate and stymied Bill Clinton. One can, as most Republicans prefer to do, remember what happened in 2005, when Republicans wanted to end filibusters on judicial nominees and every Democrat—including our current president—predicted nuclear fallout, brimstone, and exploding skulls.
We do know how the Senate came to change its rules today, a vote that represented the biggest victory for the left since the election of President Barack Obama. That process started in the first weeks of 2009, after a Democratic landslide mighty enough to sweep even Al Franken into the upper house. The Republicans, who’d held 55 seats during the 2005 “nuclear option” fight, were down to 41. A new class of Democrats, including Oregon Sen. Jeff Merkley and New Mexico Sen. Tom Udall, buckled in for action.
They got a slog. An economic stimulus package, once expected to get up to 80 votes, got over the 60-vote cloture line only with huge concessions to three Republicans. A simple omnibus parks funding bill took weeks to pass. Then, in May, just enough Republicans held together to filibuster the president’s nominee for deputy secretary of the Interior. To Majority Leader Harry Reid’s surprise, the Democratic left honed in quickly on the filibuster, demanding that he change it.
“The progressive media started pounding on Reid very early in the process—I’m talking post-2008—to engage or to execute the so-called nuclear option,” remembers Reid’s then chief of staff Jim Manley. “I’d be getting phone calls from the Huffington Post once in a while about it. We did roundtables with progressive media where it was raised. Sen. Reid held regular meetings with the freshmen to get their input and ideas on Senate matters, and this was always at the top of their agenda.”
Reid, who joined the Senate in 1987, was cold to the idea. He really did believe what he said in 2005, when he claimed the filibuster “encourag[ed] moderation and consensus,” and begged Republicans to keep it. Merkley had met with Reid on filibuster reform even before his election, but according to Democratic Senate aides, only 20 or so senators initially agreed with him. In 2011, when he made his first real charge at rules reform, Merkley had only 46 Democrats on board (out of 53), and some of that support was soft.
But the Republicans kept on filibustering. In May 2012, Republicans blocked an attempt to reauthorize the Export-Import Bank. Reid responded with an apology to progressives. “If there were ever a time when Tom Udall and Jeff Merkley were prophetic, it’s tonight,” he said. “These two young, fine senators said it was time to change the rules of the Senate, and we didn’t. And they were right. The rest of us were wrong—or most of us, anyway. What a shame.”
In retrospect, that was the moment progressives brought their party on board with the biggest majority-rule congressional reform since the 1970s. Every one of Reid’s procedural moves since then has broken the minority’s power to obstruct legislation. This wasn’t just a case of broken trust between Democrats and Republicans—though that was part of it. This was a victory for a movement that believes its greatest threat comes from unfriendly courts and minority obstruction.
Progressives have believed that for a long time. If the filibuster didn’t exist, you could have passed a muscular Civil Rights Act sooner, passed universal health care in the 1970s, or passed the House’s simpler, larger version of the Affordable Care Act in 2009. Plenty of progressives would argue that an ACA with a “public option” would have avoided the problems now dogging the Senate version that eventually passed, one that gave insurers more power in order to win extra votes from Republicans—who didn’t vote for the bill anyway.
The filibuster, as seen by progressives, didn’t just “level the playing field” or “provide checks and balances.” It allowed the minority party to block their agenda, with zero consequence. Minority Leader Mitch McConnell seemed to understand better than the Democrats did. “We worked very hard to keep our fingerprints off of these proposals,” McConnell told the Atlantic’s Josh Green in 2011, after Democrats lost the midterms. “We thought—correctly, I think—that the only way the American people would know that a great debate was going on was if the measures were not bipartisan. When you hang the ‘bipartisan’ tag on something, the perception is that differences have been worked out, and there’s a broad agreement that that’s the way forward.”
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.)
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