Let’s start be admitting that this whole business is 100% politics. It’s inside the beltway bullshitters doing what they do best.
The senate has long had rules which allowed a group of senators who wished to avoid a vote on a particular motion to continue debate on that motion. The term for this action, filibuster, comes from a dutch word which means “pillaging and plundering adventurer”. A group of only 40 senators can prevent a vote to close debate on a motion, even though it would take 51 senators to defeat a motion in a vote on the merits. The filibuster allows this relatively small group of senators to steal a motion from having a vote, effectively killing the motion.
In November 2013, Harry Reid, then Senate Majority Leader, changed the long standing rules of the senate so that only a majority of votes were required to bring cloture on debate for federal judiciary nominees and executive-office appointments. Supreme Court nominees were excluded from the rule change. The pressing issue was the confirmation of three Obama nominees to the U.S. Court of Appeals for the District of Columbia Circuit.
Senator Reid declared that the chamber “must evolve” beyond parliamentary roadblocks. “The American people believe the Senate is broken, and I believe the American people are right,” he said, adding: “It’s time to get the Senate working again.”
Then Senate Minority Leader Mitch McConnell whined “It’s a sad day in the history of the Senate,” calling the move a Democratic “power grab.”
In March 2016, with the Senate now under Republican control, President Obama nominated Merrick Garland to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia. Senate Majority Leader Mitch McConnell, who had clearly been itching for revenge, immediately said that the Senate would not act on the nomination until after the presidential election.
When Donald Trump won, Merrick Garland had no chance for confirmation. Sure enough, President Trump nominated Neil Gorsuch to the Supreme Court. Chuck Schumer, who has replaced the retired Harry Reid as Senate Minority Leader, had whipped enough Democratic votes to filibuster a vote on Gorsuch.
Mitch McConnell completed his gambit by changing the Senate rules to eliminate the filibuster for Supreme Court nominees, and Gorsuch was quickly confirmed. Today, Gorsuch was sworn in as an Associate Justice of the Supreme Court.
“This is the latest escalation in the left’s never-ending judicial war, the most audacious yet,” Mr. McConnell said, after describing Democratic opposition in the past to Judge Robert H. Bork and Justice Clarence Thomas. “And it cannot and it will not stand. There cannot be two sets of standards: one for the nominees of the Democratic president and another for the nominees of Republican presidents.”
“When history weighs what happened, the responsibility for changing the rules will fall on the Republicans’ and Leader McConnell’s shoulders,” said Senator Schumer. “They have had other choices,” he added. “They have chosen this one.”
The saddest part of this game is that the quotes from our elected leaders are interchangeable. Their political positions are determined by convenience and circumstance, not principle.
Reid got three liberal justices on the D.C. Circuit court. It’s an influential court because they review decisions and rule making by most federal agencies. McConnell got a 49 year old conservative justice on the Supreme Court. As it stands today, I think McConnell came out ahead.
However, we don’t yet have the final score, and it’s all upside for McConnell. The leader of the court’s liberal wing, the Notorious RBG (a.k.a. Ruth Bader Ginsburg) is now 84 years old, and Stephen Breyer is 78. Justice Kennedy, the current swing vote on the court, is 80. If one or more of these justices retires or dies while Trump is still in office and the Senate is still under Republican control, the Supreme Court will be heavily conservative for an entire generation.
Game, set, match, McConnell.