The Democrats’ first mistake was to launch unprecedented filibusters against President George W. Bush’s appellate court nominees, starting with his 2001 nomination of Miguel Estrada for the U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit is considered the country’s second-most important court, having produced more Supreme Court justices than any other federal court. Estrada was a supremely qualified nominee who had the support of a clear majority in the Senate. His confirmation should have been easy.
But Democrats killed his nomination. Why? According to internal strategy memos obtained by the Wall Street Journal, they blocked Estrada at the request of liberal interest groups who said Estrada was “especially dangerous” because “he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.” Democrats did not want Republicans to put the first Hispanic on the Supreme Court. Instead, two years after his nomination, they made Estrada the first appeals court nominee in history to be successfully filibustered. It was an extraordinary breach of precedent.
They did not stop with Estrada. Democrats also filibustered nine other Bush circuit-court nominees, all of whom had majority support in the Senate. It was, as columnist Robert Novak wrote at the time, “the first full-scale effort in American history to prevent a president from picking the federal judges he wants.”
The Democrats’ second big mistake was using the “nuclear option” to pack the federal circuit courts with liberal judges. After Democrats won control of the Senate and the White House, they set about trying to fill court vacancies — particularly on the D.C. Circuit — with judges so left-wing they knew they could not meet the 60-vote “standard.” When Republicans (following the precedent Democrats had set) filibustered some of President Barack Obama’s nominees, Democrats again broke precedent and eliminated the filibuster for all but Supreme Court nominees. The short-term gain of going nuclear was immense. Obama flipped most of the circuit courts from conservative to liberal majorities, including the D.C. Circuit. But the long-term costs were around the corner.
The Democrats’ third mistake was to filibuster Neil M. Gorsuch. After Republicans had won back the Senate, they refused to confirm Obama’s choice of Merrick Garland to replace the late Justice Antonin Scalia, citing as precedent the promise made in 2007 by Sen. Charles E. Schumer (D-N.Y.) that Democrats would not confirm a Supreme Court justice during President George W. Bush’s final year in office. When Donald Trump was elected and appointed Gorsuch to fill Scalia’s seat, apoplectic Democrats made a fatal error: Instead of keeping their powder dry until Kennedy resigned, they filibustered Gorsuch’s nomination. The decision to block such an obviously qualified nominee — praised for his impeccable temperament, character and intellect by legal scholars on both the left and right — freed tradition-bound Republicans to end the filibuster for Supreme Court nominees and confirm him with a simple majority.
Had Democrats not tried to block Gorsuch, they would still have the filibuster. And Republicans, who now have just a single-vote majority, would have a much more difficult time mustering the votes to change Senate rules today. But thanks to Democrats’ miscalculations, the GOP doesn’t have to.
Democrats are accusing Senate Majority Leader Mitch McConnell (R-Ky.) of hypocrisy moving forward with a Supreme Court nominee during an election year. But McConnell never said he would not confirm nominees before midterm elections in the second year of a presidency. Three sitting justices were confirmed in midterm election years: Elena Kagan (August 2010), Samuel A. Alito Jr. (January 2006) and Stephen G. Breyer (August 1994) — as were retired Justice David Souter (October 1990) and Scalia (September 1986). Trump is going to do exactly what Presidents Obama, Bill Clinton and both Bushes did before him: He will nominate a qualified candidate to fill the high court vacancy, and Senate Republicans will confirm his nominee. There is nothing the left can do about it. If Democrats are upset, too bad. They should have confirmed Miguel Estrada.