How Democrats overreached on Kavanaugh

Saying that a given political party has overreached is perhaps one of the most tired forms of political commentary. Nevertheless, it can sometimes be true, and it’s arguable that Democratic overreaching in the judiciary wars paved the way for Brett Kavanaugh’s confirmation.

When Harry Reid detonated the nuclear option in 2013 for non–Supreme Court nominations, he helped Barack Obama confirm more judges, but, in doing so, he did grave damage to norms of the Senate. Reid also provided a precedent for Mitch McConnell’s decision to go nuclear on the Neil Gorsuch nomination in 2017.

In retrospect, the Reid precedent and the decision of Democrats to go full “resistance” in 2017 dramatically weakened the hands of Democrats heading into the Kavanaugh nomination. Because Senate Democrats were able to sustain a party-line filibuster against Gorsuch (the first ever successful partisan filibuster of a Supreme Court nominee), they goaded Mitch McConnell into going nuclear. (There were potentially other ways around the filibuster — such as using Rule XIX — but Republicans followed the example of Harry Reid instead.) Fresh off the 2016 election, Senate Republicans were not going to let Scalia’s seat stay vacant.