Harry Reid: Starting the Filibuster Fire

National Journal
Matthew Cooper
Add to Briefcase
See more stories about...
Matthew Cooper
Oct. 2, 2013, 2 a.m.

Let’s not have any false equi­val­ence. This shut­down is Re­pub­lic­an-led or, more ac­cur­ately, led by a fac­tion of Re­pub­lic­ans. The Peter Kings and John Mc­Cains didn’t want to link Obama­care to a con­tinu­ing res­ol­u­tion to fund the gov­ern­ment. House con­ser­vat­ives did.

That doesn’t mean, however, that Demo­crats are en­tirely blame­less. Part of the found­a­tion for today’s para­lyzed Con­gress came dur­ing the George W. Bush years, and it in­volved Harry Re­id, now the Sen­ate ma­jor­ity lead­er. In today’s Wash­ing­ton, Re­id and Sen­ate Demo­crats are apo­plect­ic not only about the shut­down but about the un­pre­ced­en­ted use of the fili­buster be­ing de­ployed by the Re­pub­lic­an minor­ity. (See the stat­ist­ics here on the in­cred­ible surge in fili­buster use.) But back in 2003-05, Sen­ate Demo­crats were in the minor­ity, and they used the fili­buster in ways that pres­aged and cre­ated a path for the Re­pub­lic­an ex­trem­ism. Com­par­ing Re­id’s fili­buster policies when the Demo­crats were in the minor­ity to the cur­rent ob­struc­tion­ism of Mitch Mc­Con­nell, is com­par­ing play­ing with matches to be­ing an ar­son­ist. But ar­son­ists start by play­ing with matches, and it’s worth look­ing at how Re­id took the fili­buster, once a break-glass-in-case-of-emer­gency tool and used it freely in help­ing to build the cul­ture of con­front­a­tion we have now.

After the 2002 elec­tions, Demo­crats lost their Sen­ate ma­jor­ity and were eager to use whatever tools they could to sty­mie Bush’s con­ser­vat­ive ju­di­cial nom­in­a­tions. Fam­ously, since the nom­in­a­tion of Robert Bork to the Su­preme Court in 1987, sen­at­ors had been as­sess­ing a nom­in­ee’s ideo­logy rather than their aca­dem­ic qual­i­fic­a­tions. But in the years af­ter­ward, sen­at­ors be­came less and less hes­it­ant about us­ing the body’s myri­ad delay tac­tics to stall nom­in­a­tions from even get­ting a vote. (Bork, at the very least, got one and lost.) By the time of Bill Clin­ton’s pres­id­ency, Re­pub­lic­ans had no com­punc­tion about bot­tling up any num­ber of ju­di­cial nom­in­a­tions, es­pe­cially as his term came to an end us­ing only-in-the-Sen­ate tools like holds. This in­cluded Clin­ton’s nom­in­ee, Elena Kagan, who nev­er made it to the D.C. Cir­cuit Court of Ap­peals, be­cause her nom­in­a­tion was nev­er giv­en a hear­ing in the Ju­di­ciary Com­mit­tee then chaired by Re­pub­lic­an Or­rin Hatch.

When Demo­crats re­turned to the minor­ity in 2003, Re­id, then the minor­ity whip, took out a can­non when be­fore only pis­tols had been used to shoot down nom­in­a­tions. Demo­crats em­ployed the fili­buster as a weapon of choice. “If it all began with Robert Bork. No doubt the in­tens­ity of ju­di­cial nom­in­ees heated up at that time—and now the Re­pub­lic­ans have taken to ex­treme and it’s fili­busters on ster­oids,” says a top Demo­crat­ic staffer from that time re­call­ing the road to chaos.

Gran­ted, Re­id’s tac­tic was not the first time the fili­buster had been used to scuttle a ju­di­cial nom­in­a­tion. It happened in the 19th cen­tury, and it also took place in 1968 when Lyn­don John­son tried to el­ev­ate As­so­ci­ate Justice Abe Fortas to be chief justice. (Fortas even­tu­ally resigned from the Court over eth­ics is­sues.) But Re­id em­braced the fili­buster as the chief tac­tic in un­der­min­ing ju­di­cial nom­in­a­tions. Norm Orn­stein, known as a non­par­tis­an con­gres­sion­al schol­ar has got­ten at­ten­tion for a new book, It’s Even Worse Than It Looks, that breaks from false equi­val­ence and lays most of the blame for Wash­ing­ton’s cur­rent grid­lock squarely on Re­pub­lic­an ex­trem­ism. Still, Orn­stein calls the Demo­crat­ic ju­di­cial fili­busters of the pre­vi­ous dec­ade dis­taste­ful. “It was a bad mo­ment that rou­tin­ized fili­busters,” he says.

Most not­ably, Re­id used the fili­buster to scuttle the nom­in­a­tion of Miguel Es­trada, a con­ser­vat­ive law­yer who had been a fed­er­al pro­sec­utor and an as­sist­ant so­li­cit­or gen­er­al. The pres­id­ent’s nom­in­a­tion of Es­trada to the D.C. Cir­cuit Court of Ap­peals, ar­gu­ably the na­tion’s second-highest court and a spring­board for the Su­preme Court, set Wash­ing­ton buzz­ing. Of Hon­dur­an des­cent, Es­trada is of an eth­ni­city that put him on a con­ser­vat­ive wish list for the Su­premes—if he first could get on the D.C. Cir­cuit. Demo­crats re­cog­nized this, too, and seized on his con­ser­vat­ive polit­ics, which was en­tirely jus­ti­fi­able, al­though any num­ber of lib­er­als thought Es­trada a good pick. Kagan her­self said dur­ing her Su­preme Court hear­ings some years later that Es­trada would be an “ab­so­lutely su­per­lat­ive” jur­ist.

But the Demo­crats held up a vote on Es­trada at first, they said, to get more an­swers. Re­id was in­teg­ral to the ob­struc­tion­ist strategy. “Mr. Es­trada comes with a scant pa­per trail but a repu­ta­tion for tak­ing ex­treme po­s­i­tions on im­port­ant leg­al ques­tions. He stone­walled when he was asked at his con­firm­a­tion hear­ings last fall to ad­dress con­cerns about his views,” said Re­id in 2003, ex­plain­ing one of the many delays and sound­ing every bit like the Re­pub­lic­ans who would later op­pose Obama’s nom­in­ees for sim­il­ar reas­ons. But it’s not like Re­id & Co. moved on to a vote after a reas­on­able peri­od of col­lect­ing in­form­a­tion. The nom­in­a­tion lan­guished for al­most two years. Even­tu­ally, Es­trada with­drew his nom­in­a­tion. (Dis­clos­ure: Es­trada was a mem­ber of the team that rep­res­en­ted me and Time Inc. in the CIA leak case.) Be­fore it was over, some 10 Bush nom­in­ees were blocked through the fili­buster.

At the time Re­id de­fen­ded his ac­tions, not­ing that as a per­cent­age of ju­di­cial nom­in­a­tions Pres­id­ent Bush had fared quite well. “We turned down 10. More than 98 per­cent of the judges that the pres­id­ent asked for he got: 204 to 10. That’s a tre­mend­ously im­press­ive num­ber for the pres­id­ent to get,” he said in an in­ter­view with PBS shortly after be­com­ing minor­ity lead­er in 2005. That’s a fair point. Clin­ton saw 70 nom­in­a­tions scuttled, but it doesn’t change the fact that Re­id as whip and then as minor­ity lead­er took the fili­buster to a high­er level by train­ing it on ju­di­cial nom­in­ees en masse. (It’s worth not­ing that then-Sen. Barack Obama backed a fili­buster of Samuel Alito when Bush tapped the New Jer­sey jur­ist for the high court.)

In early 2005, the Re­pub­lic­an ma­jor­ity in the Sen­ate, then led by Bill Frist, openly dis­cussed the “nuc­le­ar op­tion” to cur­tail the fili­buster. (Today, Demo­crats now in the ma­jor­ity and be­deviled by the Re­pub­lic­ans, make sim­il­ar ar­gu­ments.) To avoid the con­flag­ra­tion, more than a dozen sen­at­ors of both parties, the “Gang of 14,” came to an agree­ment that the fili­buster would not be used against ju­di­cial nom­in­a­tions un­less it was un­der “ex­traordin­ary cir­cum­stances.” The con­cord wasn’t form­ally voted on in the Sen­ate, but it was in­form­ally ad­op­ted as policy. It stood as a re­buke to Re­id and the Demo­crat­ic tac­tics. The peace didn’t hold, of course. Fili­busters are now de ri­geur in the Mc­Con­nell era. It’s im­possible to ima­gine so many sen­at­ors even be­ing cap­able of com­ing to­geth­er to of­fer a voice of san­ity. For his part, Re­id has said he’s con­sid­er­ing push­ing for sub­stant­ive fili­buster re­form, even if he hasn’t ac­ted on it. Bet­ter late than nev­er.

Who do you think broke Wash­ing­ton? Tell us here.

What We're Following See More »
EXPECTED TO FUND THE GOVERNMENT THROUGH SPRING
Funding Bill To Be Released Tuesday
14 hours ago
THE LATEST

House Majority Leader Kevin McCarthy told reporters on Monday that the government funding bill will be released on Tuesday. The bill is the last piece of legislation Congress needs to pass before leaving for the year and is expected to fund the government through the spring. The exact time date the bill would fund the government through is unclear, though it is expected to be in April or May.

Source:
IT’S OFFICIAL
Trump to Nominate Carson to Lead HUD
23 hours ago
THE LATEST

As has been rumored for a week, Donald Trump will nominate Ben Carson, his former rival, to lead the Department of Housing and Urban Development. In a statement, Trump said, "We have talked at length about my urban renewal agenda and our message of economic revival, very much including our inner cities. Ben shares my optimism about the future of our country and is part of ensuring that this is a Presidency representing all Americans. He is a tough competitor and never gives up."

Source:
$618 BILLION IN FUNDING
By a Big Margin, House Passes Defense Bill
3 days ago
THE DETAILS

The National Defense Authorization Act passed the House this morning by a 375-34 vote. The bill, which heads to the Senate next week for final consideration, would fund the military to the tune of $618.7 billion, "about $3.2 billion more than the president requested for fiscal 2017. ... The White House has issued a veto threat on both the House and Senate-passed versions of the bill, but has not yet said if it will sign the compromise bill released by the conference committee this week."

Source:
SUCCEEDS UPTON
Walden to Chair Energy and Commerce Committee
3 days ago
THE DETAILS

"Republicans have elected Rep. Greg Walden (R-OR) the next chairman of the powerful House Energy and Commerce Committee. Walden defeated Reps. John Shimkus (R-IL) and Joe Barton (R-TX), the former committee chairman, in the race for the gavel" to succeed Michgan's Fred Upton.

Source:
BIPARTISAN SUPPORT
Senators Looking to Limit Deportations Under Trump
4 days ago
THE DETAILS

"Democratic and Republican members of the Senate Judiciary Committee are working on legislation that would limit deportations" under President-elect Donald Trump. Leading the effort are Judiciary Committee members Dick Durbin (D-IL) and Lindsey Graham (R-SC). Sen. Jeff Flake (R-AZ) is also expected to sign on.

Source:
×
×

Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.

Login