The Death Of The Reid Rule

REUTERS/Joshua Roberts

Michael Thielen Executive Director, Republican National Lawyers Association
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Yesterday, the Senate voted to end the first ever successful partisan filibuster of a Supreme Court nominee by the so-called “constitutional,” “Reid” or “nuclear” option.  In other words, democracy was restored because simple majority rule was restored.

Two things were revealed about modern Democrats during the Gorsuch nomination and hearing: the unprecedented partisan dysfunction of former Democrat Majority Leader Harry Reid on judicial nominations has begun to come to an end and the current leadership has proved they are completely controlled by radicals on the far left who call on them to resist at every turn a person they consider to be an illegitimate President.

The “obstruction” of judicial nominees did not begin when Reid used the so-called “nuclear option” to confirm judges to the DC Circuit in 2013.  Rather, it began in 2003 when Reid and Senate Democrats engaged in a partisan filibuster of Miguel Estrada for the DC Circuit.  Staff emails that later came to light revealed their objection to Estrada was that he was “Latino” and likely a future Supreme Court nominee.  Prior to this, the filibuster was never contemplated for a lower court nominee and had only been used once for a Supreme Court nominee.  (That filibuster, of Abe Fortas, was bipartisan and the nomination was quickly withdrawn because it was destined to fail due to ethics concerns on both sides of the aisle.)

Emboldened by the filibuster of Estrada, Democrats went on to filibuster seven other nominees, many for bigoted or sexist reasons.  Ironically, now-Chief Justice John Roberts sailed through his hearing while Miguel Estrada was targeted.   There were other victims of the Democrats’ bigotry, including African-American Judge Janice Rogers Brown.  The left’s attacks on Judge Brown were led by Reid and were noted in a contemporary article:  “The black sharecropper’s daughter, born in segregated Alabama, has been excoriated as a closet member of the Ku Klux Klan who, at least according to the Senate minority leader (Harry Reid), would like nothing better than to return America to ‘Civil War days.’ Left-leaning political cartoonists depict her as an Aunt Jemima on steroids, complete with exaggerated physical features typically found only in the racist literature distributed by hate groups.”

Of course, Neil Gorsuch is a white male so he was not filibustered for bigoted or racist reasons.  Which brings us to the other revelation: the insistence on blocking anyone associated with President Donald Trump.  Ironically, one of the biggest outcries in the Presidential debates was over Trump’s equivocation on whether he would accept the results of the elections.  This was a top story for days.  Yet now it’s Democrats who can’t accept the results.

If there was ever proof of the media bias, it lies there.  No less than the leader of the Democrat Party, Thomas Perez, said last week “Donald Trump you didn’t win the election.”  Instead of leading, Minority Leader Chuck Schumer has chosen to listen to the extremists in his own party and resist everything Trump is doing.  Schumer previously declared the American Bar Association’s rating of judicial nominees to be the “gold standard” for determining whether someone should be put on the Supreme Court.  Judge Gorsuch received an unanimous “well-qualified” rating from the ABA, their highest rating.  As an organization the ABA defines the left’s idea of the legal mainstream.

Yet there was Schumer, opposing Gorsuch for, you guessed it, being out of the “legal mainstream.”  Proving that, for the most part, Democrats no longer care about anything except appeasing their far-left base.

Previously the “nuclear option” was avoided when Senators like John McCain made deals with moderate Democrats to work out a comprise that allowed many filibustered nominees to pass through under the “Gang of 14” deal.  While GOP gang members such as Graham, Collins, and McCain are still around, there are no moderate Democrats left and therefore no deals to be made. Democrats can only obstruct to get their way now as they’ve gotten rid of most in their party who might reach across the aisle.

A great example of this is Senator Claire McCaskill of Missouri.  Donald Trump won Missouri by 19%. In recorded comments she said she was “mortified” about filibustering Gorsuch.  Yet, McCaskill fears the far left of her party more than the voters of her state and had no choice but to make the “uncomfortable” vote for a hopeless filibuster of a well-qualified nominee.

These kinds of political calculations led Senate Majority Leader Mitch McConnell to nuke the filibuster Thursday, something he never wanted to do. Democrats literally gave him no other choice.  For this was never about Gorsuch, as the Leader stated: “Now they’re threatening to do something else that’s never been done in the history of the Senate: successfully filibuster a Supreme Court nominee on a purely partisan basis. And for what reason? . . . Because he was nominated by a Republican President. This is the latest escalation in the left’s never ending judicial war, the most audacious yet, and it cannot and it will not stand.”

While the path is now clear for Supreme Court nominees to be confirmed by a majority vote, it seems likely the bigotry, sexism and terrible treatment of nominees will continue as evidenced by Judiciary Committee votes on the same day Judge Gorsuch was voted out of committee.  At that hearing, two extremely qualified nominees for leadership positions in the Justice Department (roughly the closest equivalent to the courts) were confirmed in very different manners.  While both Rod Rosenstein and Rachel Brand had impeccable backgrounds and were also Obama appointees, Rosenstein was confirmed with bipartisan support while Brand was a straight party-line vote.  Brand, as you can guess, has been mentioned as a possible future judicial nominee.

The Democrats have lost the power to filibuster, but unfortunately there is no evidence they are going to stop efforts to undermine the election.  The filibuster of judicial nominees was “nuked” this week.  If Senate Democrats keep up their efforts to resist and attack, there will be more victims, up to and including the government itself.  Senate Democrats no longer act like legislators but more like extremists urging the undermining of election results and by extension, the U.S. system of government.

Michael Thielen is executive director of the Republican National Lawyers Association.