Harry Reid: Starting the Filibuster Fire

National Journal
Matthew Cooper
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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.

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