Senate Majority Leader Harry Reid just called to ask a perfectly fair question about my column criticizing the Democrats’ filibuster rules change: “What would you have done?”
This is, of course, the sort of problem that actual lawmakers have to wrestle with and that armchair pundits can excuse themselves from addressing. As the Nevada Democrat saw matters, he had no choice. “They were mocking me,” he said. “They were mocking us.” By blocking all three of President Obama’s nominees to the federal Court of Appeals for the D.C. Circuit — all four, actually, including one who gave up after languishing for two years — “They kind of dared us to do it,” Reid said.
Senate Republicans’ behavior with respect to Obama’s judicial nominees has been outrageous. Certainly, Democrats during their time in the minority behaved badly in confirming, or refusing to confirm, Republican nominees, but in nowhere near the numbers of Republicans. As Reid noted, there have been 23 filibusters of district court nominees total — 20 during the last 4 1/2 years.
So, as I wrote, I feel the majority leader’s frustration. Which is why I thought Democrats were justified in deploying the nuclear option, to change Senate rules by a simple majority rather than the usual two-thirds, to eliminate the ability to filibuster nominees to positions in the executive branch.
Yet sometimes when a bully challenges you, the smartest move is to walk away. Reid says he couldn’t. “To leave that court” — the D.C. Circuit — “with a majority of crazies would have been terribly bad for the country,” he said.
But a move to curtail filibusters of executive branch nominees might have jarred Republicans enough to loosen up on some of the judicial filibusters. Even if not, shifting the current balance on the D.C. Circuit — it tilts conservative when senior judges, who continue to hear cases, are added to the mix — is not worth the complete loss of the tool in the future.
I’m not a fan of filibustering judges, but there are situation in which it is appropriate, and the need to amass 60 votes has had a chastening effect on presidential selection. It is not far-fetched to imagine a Republican president, Senate Democrats in the minority and second thoughts about Thursday’s move. Imagine a Supreme Court vacancy, a Republican president, and enormous pressure from the right to pick an extremely conservative nominee.
How long do you think the current rule — which still allows filibusters for Supreme Court nominations — would stand? Ask yourself that, and ask whether getting these nominees confirmed is worth that risk?
I would have eliminated the filibuster for executive branch nominees and then stood down, mocked or not.