Talk about bringing receipts. Some Democrats have finally begun to back away from attacking the process of filling an open Supreme Court seat, but not Chuck Schumer. He has spent most of his time the last few days attacking Mitch McConnell for hypocrisy (fair enough) and for destroying the norms of the Senate regarding its role in the federal judiciary — which is utterly absurd.
McConnell set the record straight on norm-busting in the upper chamber, and Schumer’s long history of it, in a floor speech this morning. Schumer may want to pretend this started in 2016, but McConnell notes exactly when and how this generational food fight over judicial confirmations started, and who started it:
It was Senate Democrats who began our modern challenges with their treatment of Robert Bork in 1987. But the acrimony really got going in the early 2000s, when a group of Senate Democrats took the almost-never-used tactic of filibustering nominations and turned it into a constant routine for the first time ever.
“Who was a main driving force behind those tactics? Let’s consult some New York newspapers from the year 2003. Quote: ‘Schumer decided [to] put ideology on the front burner in the confirmation process… ‘I am the leader (of the filibuster movement), and you know, I’m proud of it,’ said the senator from Brooklyn.’
Quote: ‘Mr. Schumer urged Democratic colleagues… to use a tactic that some were initially reluctant to pursue, and that has since roiled the Senate.’
Throughout President Bush 43’s two terms, our colleague built an entire personal brand out of filibustering judicial nominees. Talented, hardworking people’s careers were destroyed — like the brilliant lawyer Miguel Estrada, a close friend of now-Justice Elena Kagan, who says he is ‘extraordinary’ and ‘thoughtful’ and would have made ‘an excellent addition to any federal court.’ People like that, destroyed by the Democrats’ tactics.
“This version of the now-Democratic Leader said filibustering judges was an essential part of the Senate. He said that if Republicans ever used the nuclear option to ‘change the rules in midstream’ because ‘they can’t get their way on every judge… it’ll be a doomsday for democracy.’ But of course, in the very next presidential administration, the Democratic Leader leapt at the chance to press that ‘doomsday’ button himself.
Democrats have no one but themselves to blame for turning the judicial nomination process into a brute-force majoritarian war zone. Schumer and Harry Reid literally created that with their 2013 rule change eliminating the filibuster from presidential appointments, including all judicial nominations except to the Supreme Court. That was a safe enough bet for Democrats at the time, since Republicans routinely voted in significant numbers for Democrats’ Supreme Court nominees and even appellate court appointments — while Democrats usually united in scorched-earth votes on nominations made by Republicans. They only got burned by it in 2017 when McConnell removed the Supreme Court exception by following the precedent set by Reid and Schumer in 2013.
As I wrote the other day, it’s not tough to imagine that we would have three seats open at the moment on the Supreme Court without that 2017 change. Schumer would have used the filibuster to block anyone nominated by Trump otherwise. Schumer’s complaint about McConnell’s 2017 move is akin to a toddler’s lament of “Mom, he hit me back!”
No one will argue that this is a healthy environment, of course. It would be far better to return to a political environment where the two parties acknowledged the authority of a president to nominate jurists of his/her choice, and where the Senate restrained itself to considerations of competence and ethics rather than policy and politics. The author of the change in environment isn’t Mitch McConnell, however, no matter how much Schumer and his progressive allies protest otherwise.