Menendez Gets Facts Wrong About Merrick Garland Blockade

New Jersey senator says Obama nominee would be on high court now if former Dem leader Harry Reid had eliminated filibuster on Supremes

Image Credit: Chip Somodevilla/Getty Images

Sen. Bob Menendez (D-N.J.) made two dubious claims in a brief interview on CNN Friday — one outright false and one merely disingenuous.

Reacting to the vote that pushed Judge Brett Kavanaugh’s nomination to the Supreme Court to the final step, Menendez (pictured above) said the nomination process hit “rock bottom” when Republicans “stole” the Supreme Court seat that rightfully belonged to Merrick Garland.

That is not unusual. Democrats have complained for more than two years that Senate Majority Leader Mitch McConnell (R-Ky.) decided to deny Garland a hearing after former President Barack Obama nominated him to fill the vacancy created by Justice Antonin Scalia’s death.

What makes Menendez’s comment noteworthy is that he claimed former Democratic Senate leader Harry Reid of Nevada did not put the chamber on a glide path to getting rid of the filibuster and that Reid somehow could have ensured that Garland got confirmed.

Reid, who ran the Senate with an iron fist when Democrats controlled the chamber, grew impatient with minority Republicans’ use of the filibuster to slow or block Obama nominees.

Many observers believe McConnell would have had a much harder time moving to a 51-vote threshold for Supreme Court nominees if Reid had not greased the wheels with the so-called nuclear option.

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So in 2013, Reid changed the rule for executive branch nominees and lower court judicial positions. Instead of needing a filibuster-proof majority of 60 votes, the Senate needed only to muster a simple majority of 51 votes.

The change allowed Obama nominees to slide through.

But when President Donald Trump took office and had the opportunity to fill Scalia’s seat, the Republicans used Reid’s change as precedent and extended it to the Supreme Court. That paved the way for the confirmation of Justice Neil Gorsuch.

CNN anchor Wolf Blitzer asked Menendez if Democrats shared the blame because of the rules change ordered by Reid. Menendez denied it.

“The precedent would have been, from my perspective, Wolf, if he would have changed the vote for a Supreme Court justice, then there’d be nothing to complain about,” he said. “He understood the gravity of what it is to have a Supreme Court nominee.”

Many observers believe McConnell would have had a much harder time moving to a 51-vote threshold for Supreme Court nominees if Reid had not greased the wheels with the so-called nuclear option.

Related: Sen. Susan Collins Will Vote ‘Yes’ on Brett Kavanaugh; Manchin Follows Suit

But that, at least, is debatable.

What is not debatable is that Menendez misstated the facts when he said Garland would be on the Supreme Court if Reid had extended the nuclear option to all appointees.

“He could have changed the vote then, and then we would have had Merrick Garland on the court instead of the last nominee,” he said. “So the reality is that while he did it for the lower courts because we had unprecedented obstruction by the minority at the time, he preserved it for the Supreme Court.”

But the filibuster had nothing to do with blocking Garland. Republicans were in the majority when Obama nominated him. They simply refused to convene a hearing of the Senate Committee on the Judiciary.

Blitzer did not challenge Menendez on that point. The senator later repeated it.

“We didn’t eliminate it then,” he said. “If not, Merrick Garland would have been on the Supreme Court of the United States.”

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