WASHINGTON ― Republicans are confirming judges at a breakneck pace and are pushing forward with changes to Senate rules that make it even easier to confirm more of President Donald Trump’s judicial nominees. It’s a tremendously important achievement ― one that is already being called their most enduring legacy.
But Democrats who blew up the rules when they were in the majority to make it easier to confirm executive and judicial nominees say they have no regrets about doing so.
“It wasn’t a mistake. The mistake is to have people confirm judges that are way out of the mainstream and to refuse to be thoughtful about what we’re going to do the judiciary,” Sen. Jeff Merkley (D-Ore.), a lead proponent of filibuster reform at the time, told HuffPost this week.
In 2013, under the leadership of then-Sen. Harry Reid (D-Nev.), Democrats voted to deploy a parliamentary procedure dubbed the “nuclear option” to change Senate rules to pass most executive and judicial nominees by a simple majority vote, instead of the long-standing 60-vote threshold needed to overcome a filibuster. They argued that unprecedented obstruction to then-President Barack Obama’s executive and judicial nominations necessitated the historic change to Senate rules.
It wasn’t a mistake. The mistake is to have people confirm judges that are way out of the mainstream and to refuse to be thoughtful about what we’re going to do the judiciary. Sen. Jeff Merkley (D-Ore.)
Republicans were furious, however, warning that Democrats would come to rue abandoning the filibuster on executive and judicial nominees.
“I say to my friends on the other side of the aisle, you’ll regret this,” then-Senate Minority Leader Mitch McConnell (R-Ky.) told them at the time. “And you may regret it a lot sooner than you think.”
Now, as majority leader, McConnell is leading the push to reshape the federal bench with mostly young, conservative nominees. The Senate is expected by next week to confirm a total of six circuit court nominees, bringing Trump’s number of circuit court nominees confirmed to 21, after already confirming more nominees to the nation’s appellate courts by a single president in over half a century. All would serve lifetime appointments.
“By appointing and confirming these strict constructionists to the courts who are in their late 40s or early 50s ... we’re making a generational change in our country that will be repeated over and over and over down through the years,” McConnell told conservative radio host Hugh Hewitt last week.
Most Democrats who spoke to HuffPost about their 2013 vote to go nuclear dismissed the notion that they somehow paved the way for Trump’s parade of conservative judges, arguing that the GOP is degrading Senate rules on judicial nominees in other ways.
Republicans, for example, have been bending longstanding Senate tradition that allows home-state senators of a nominee to deny or advance their nomination in the Judiciary Committee. The GOP did so again this week, for example, when they confirmed Michael Brennan to be a lifetime judge on the U.S. Court of Appeals for the 7th Circuit over the objection of Sen. Tammy Baldwin (D-Wis.). Republican senators routinely abused the tradition, known as a “blue slip,” to block Obama’s court picks.
And last month, Republicans voted to advance a proposal, authored by Sen. James Lankford (R-Okla.), that would substantially cut down on the amount of debate time needed for hundreds of nominations ― speeding up the time needed to get them confirmed.
“The rules change has nothing to do with it. It’s just pure partisanship,” Sen. Pat Leahy (D-Vt.) said, noting that McConnell’s greatest legacy includes denying Obama a hearing on his Supreme Court pick in 2016.
Adam Jentleson, a former spokesman for Reid, said his “only regret” was that Democrats didn’t change the rules prior to 2013 which would have given them even more time to confirm Obama nominees.
“McConnell was blocking judges at an unprecedented pace and if we hadn’t changed the rules, we would’ve confirmed far fewer Obama judges and there would be far more vacancies right now for Trump to fill, including to important courts like the critical DC Circuit,” he said.
The rules change has nothing to do with it. It’s just pure partisanship. Sen. Pat Leahy (D-Vt.)
But some Democrats said that, in hindsight, the 2013 rules change may not have been such a good idea.
Sen. Joe Manchin (D-W.Va.), one of just three Democrats who opposed going nuclear, criticized the former Nevada senator who pushed to change the filibuster rules.
“The whole thing is coming apart. We’re just going to become a glorified extension of the House. I blame one guy. I blame Harry Reid,” he said.
Sen. Richard Blumenthal (D-Conn.), meanwhile, said he thought the decision to change the filibuster rules was “right at the time.”
“But in retrospect,” he added, “we might wanna rethink it.”