Harry Reid: Starting the Filibuster Fire

National Journal
Matthew Cooper
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 »
COST HAS RISEN 400%
EpiPen Prices Draw Scrutiny from Congress
4 minutes ago
THE DETAILS

The cost of EpiPens have risen 400% since 2007, and members of Congress increasingly want to know why. Judiciary Chairman Charles Grassley (R-IA) sent a letter to Mylan, which makes the allergy injection devices, on Monday. “Many of the children who are prescribed EpiPens are covered by Medicaid, and therefore, the taxpayers are picking up the tab for this medication," he wrote. Sen. Amy Klobuchar (D-MN) "called earlier for a Judiciary Committee inquiry into the pricing and an investigation by the Federal Trade Commission."

Source:
INTEL, AIR POWER
U.S. May Aid Turkey in Fight Against ISIS
4 minutes ago
THE DETAILS

"The U.S. is considering providing military support for hundreds of Turkish-backed rebels massing at the border with Syria for a major offensive meant to sever Islamic State’s supply routes there, officials from both countries said." As Turkey looks to reestablish its military's credibility after the recent coup attempt there, the U.S. is considering providing intelligence and air support.

Source:
BIG CHANGE FROM WHEN HE SELF-FINANCED
Trump Enriching His Businesses with Donor Money
14 hours ago
WHY WE CARE

Donald Trump "nearly quintupled the monthly rent his presidential campaign pays for its headquarters at Trump Tower to $169,758 in July, when he was raising funds from donors, compared with March, when he was self-funding his campaign." A campaign spokesman "said the increased office space was needed to accommodate an anticipated increase in employees," but the campaign's paid staff has actually dipped by about 25 since March. The campaign has also paid his golf courses and restaurants about $260,000 since mid-May.

Source:
QUESTIONS OVER IMMIGRATION POLICY
Trump Cancels Rallies
23 hours ago
THE LATEST

Donald Trump probably isn't taking seriously John Oliver's suggestion that he quit the race. But he has canceled or rescheduled rallies amid questions over his stance on immigration. Trump rescheduled a speech on the topic that he was set to give later this week. Plus, he's also nixed planned rallies in Oregon and Las Vegas this month.

Source:
‘STRATEGY AND MESSAGING’
Sean Hannity Is Also Advising Trump
1 days ago
THE LATEST

Donald Trump's Fox News brain trust keeps growing. After it was revealed that former Fox chief Roger Ailes is informally advising Trump on debate preparation, host Sean Hannity admitted over the weekend that he's also advising Trump on "strategy and messaging." He told the New York Times: “I’m not hiding the fact that I want Donald Trump to be the next president of the United States. I never claimed to be a journalist.”

Source:
×