Dems Upset Over ‘Nuclear Option’ Should ‘Look in the Mirror’

Gorsuch supporters say liberals started partisan battles that led to pending rules change

by Brendan Kirby | Updated 04 Apr 2017 at 8:35 PM

Democrats screaming loudly over Senate Republicans’ plan to — in the words of Minority Leader Chuck Schumer, “break the rules” on the filibuster — refuse to accept the role they played, according to supporters of U.S. Supreme Court nominee Neil Gorsuch.

Leonard Leo, an adviser to President Donald Trump on judicial appointments, noted in a conference call with reporters on Tuesday that it was former Democratic Senate leader Harry Reid (D-Nev.) who eliminated the filibuster for all appointments except the Supreme Court in 2013. Even before that, he added, it was Democrats who fired the first salvo in the escalating war over the courts in the 1980s.

“They should basically look in the mirror rather than point their finger at the ‘nuclear option.'”

“They should basically look in the mirror rather than point their finger at the ‘nuclear option,'” he said.

Schumer has succeeded in corralling enough Democrats to sustain a filibuster against Gorsuch, a judge who won unanimous, bipartisan confirmation to the Denver-based 10th U.S. Circuit of Appeals and has earned widespread praise in legal circles from across the spectrum. The move is unprecedented. Only one successful filibuster has been mounted against a Supreme Court nominee. The 1969 filibuster against Abe Fortas was both bipartisan — 24 Republicans and 19 Democrats — and based on ethics concerns.

Leo, who is on loan to the White House from his job as executive vice president of the Federalist Society, said Democrats first began ratcheting up opposition to a Republican-appointed judge in 1984. That effort culminated with the successful defeat of Robert Bork, then-President Ronald Reagan’s Supreme Court pick in 1987.

Then, in the 2000s, for the first time in either party, Senate Democrats began using the filibuster to block appellate court nominees.

"It was really the Left and the Democrats who started this fire," Leo said.

Martin Gold, a partner at Capitol Counsel and an expert in Senate procedure, told reporters that the long history of the filibuster includes almost no instances in which it was even contemplated as a tool to block nominations. He noted the Senate added a rule in 1917 to allow senators to cut off debate with a certain number of votes.

In 1949, Gold said, the Senate amended the rule again to apply the so-called cloture rule to all debatable matters, not just actual legislation. Both times, he said, nominations never came up in discussion.

"There's not one mention of the word, 'nomination,'  because there was no history of filibustering nominations," he said.

Gold said Democrats were big fans of requiring 60 votes for judicial nominees when George W. Bush was president and changed the filibuster rule when Barack Obama was the president making nominations.

"Now that it's President Trump making the appointment, the 60-vote threshold reappears," he said. "So I think the 60-vote threshold, which has no basis in the history of the Senate, appears and disappears depending upon who's making the appointment."

Democratic hypocrisy is evident in their own words. Sen. Tim Kaine (D-Va.), who was Democrat Hillary Clinton's running mate in the 2016 presidential election, said weeks before Election Day — when a Clinton victory seemed certain and analysts were predicting a Democrat takeover of the Senate — that the party would not allow Republicans to block judicial appointments.

"If these guys think they're going to stonewall the filling of that vacancy or other vacancies, then a Democratic Senate majority will say, 'We're not going to let you thwart the law,' and so we will change the Senate rules to uphold the law," he said in an interview with the Huffington Post.

By March 30, Kaine had rediscovered the value of the filibuster.

"But the rule right now requires 60 for a Supreme Court justice because of the importance of the position, and that guarantees that somebody who is going to get on the court will need bipartisan support, and I think that is the right rule," he said in an interview with Washington's Fox affiliate. "So we should insist on the 60-vote threshold."

Schumer himself tipped his hand earlier this year. In January, before Trump even had taken office, the senator said on MSNBC's "The Rachel Maddow Show" that there would be consequences for the Republican decision to block Obama's nominee to the vacant Supreme Court seat. He predicted enough Republican senators who revere the institution's traditions would prevent a filibuster rule change.

"We are not going to make it easy for them to pick a Supreme Court justice," he said.

Maddow asked, "And so you would do your best to hold the seat open?"

He responded: "Absolutely."

Leo said Republicans should not be embarrassed to change the rule.

"This is, I think unfortunately, a necessary and unfortunate byproduct of having a court that has injected itself into politics," he said. "And so that's what we're seeing. And both sides have participated in that. And that's just the nature of where we are today."

  1. Chuck Schumer
  2. Confirmation
  3. Filibuster
  4. Neil Gorsuch
  5. nominations
  6. Supreme Court
  7. Tim Kaine