In the event, President Obama won reelection and Democrats retained their Senate majority, but their supporters were impatient with the lack of progress on judges during the first term. Some began to suggest that Majority Leader Harry Reid, of Nevada, resort to the nuclear option as the most efficient way to overcome Republican obstruction. Reid and McConnell reached an agreement to avoid a radical rules change in favor of temporary changes to speed up floor activity. “I’m not personally, at this stage, ready to get rid of the sixty-vote threshold,” Reid told the Washington Post. “With the history of the Senate, we have to understand the Senate isn’t and shouldn’t be like the House.”
The détente was short-lived. Within weeks, Republicans were filibustering President Obama’s nomination of Chuck Hagel to be defense secretary. Until that point, the Senate had never in history filibustered a nomination for secretary of defense. This action signaled to Reid that Republicans would exercise no restraint. Hagel, after all, had served in the Senate—and was a Republican, no less. Echoing the words of Bill Frist, Reid warned his colleagues: “I’m going to wait and build a case. If the Republicans in the Senate don’t start approving some judges and don’t start helping get some of these nominations done, then we’re going to have to take more action.”
Meanwhile, voters who had twice elected Barack Obama president were becoming enraged at the slow pace of judicial nominations and confirmations.6 One of the new administration’s priorities was filling three vacancies on the D.C. Circuit, the most powerful court in the country after the Supreme Court. The D.C. Circuit is the first court—and often the last—to review cases involving federal regulations and executive authority, including issues related to national security, environmental protection, campaign finance, and workers’ rights. And it is frequently the launching pad for future Supreme Court justices.7 President Obama simultaneously introduced three D.C. Circuit nominees in an elaborate Rose Garden ceremony. “These are incredibly accomplished lawyers by all accounts,” he said. “There is no reason aside from politics for Republicans to block these individuals from getting an up or down vote.”
Practicing tactics they would later use for the Supreme Court, Republicans immediately set themselves in opposition to the nominees and refused to give them an up or down vote. Even before Obama announced the nominations, Republicans had accused the president of “court-packing.” In the words of Chuck Grassley, the highest-ranking Republican on the Judiciary Committee, “It’s hard to imagine the rationale for nominating three judges at once for this court given the many vacant emergency seats across the country, unless your goal is to pack the court to advance a certain policy agenda.”
Reid began counting votes to determine his caucus’s support for resorting to the nuclear option. “I am not going to wait another month, another few weeks, another year, for Congress to take action on the things that we have been doing for almost 240 years,” Reid said. This was not just about judges. Among the pending nominations were the heads of the Environmental Protection Agency, the National Labor Relations Board, the Department of Labor, and the Consumer Financial Protection Bureau—all nominees he knew would fail to reach sixty votes.
By then, a majority of the Democratic caucus had come to share Reid’s frustration. Consensus emerged around a proposal to change the vote threshold to fifty-one only on executive-branch nominations, leaving the threshold at sixty votes for lifetime judicial appointments and all legislation. “The changes we are making are very, very minimal,” Reid said. “What we’re doing is saying, ‘Look, American people, shouldn’t President Obama have somebody working for him that he wants?’ We’re going to make this simple change.”
As Republicans threatened “total war” if this limited version of the nuclear option went through, Reid and McConnell called an all-senators meeting in the Old Senate Chamber. The meeting place was significant. The room had housed the United States Senate and then the Supreme Court for much of the nineteenth century; had been torched by the British during the War of 1812; and had served as the stage where Daniel Webster, Henry Clay, and John C. Calhoun had fought over slavery and struck precarious compromises to stave off secession and perpetuate the power of slave states in Congress.8
For more than three and a half hours on a humid summer night, I listened as nearly every senator voiced his or her opinion about whether and how the Senate should change its filibuster rules. Behind these closed doors, some of my colleagues expressed their misgivings that things had come to this. There were Republicans who supported filibusters against Obama’s nominees and admitted that some of their opposition was unwarranted. There were Democrats who supported lowering the threshold yet expressed reservations about changing the rules in the middle of the game.
The genuine bipartisan debate in the Old Senate Chamber led to an overnight deal struck by Reid and McConnell that ended the immediate crisis. It included green-lighting the confirmations of Tom Perez as labor secretary, Gina McCarthy as EPA director, and five nominees to the National Labor Relations Board. The deal’s limited scope made no broader commitments with respect to the use of the filibuster. “They are not sacrificing their right to filibuster, and we damn sure aren’t giving up our right to change the rules if necessary, which I am confident it won’t be,” Reid said. “I am very encouraged about the discussion we’ve had over the last few days.”
By the end of July 2013, the Senate had confirmed nearly one hundred executive nominees. But cooperation collapsed during the summer, weakened by a toxic August recess debate over health care and immigration reform that culminated in the Ted Cruz–led sixteen-day government shutdown over Obamacare. Cruz, of Texas, had come to the Senate with no real interest in legislating. He came for the platform it offered. And he immediately sought out ways to disrupt Senate business so that he could reap publicity and raise money online—and thereby build his stature and ultimately run for president. Carl Levin, of Michigan, whose office in the Russell Senate Office Building I now occupy, was adamant in arguing that the norms and procedures of the Senate have profound value and need nurturing and support—as well as bipartisan tending, because what goes around comes around. Cruz seems never to have given that idea a second thought or in all likelihood a first one. He chose to grind the Senate to smithereens to serve his own narrow political interests.9
Cruz’s shutdown divided Republicans, and when the government reopened they were anxious for a display of party unity. A week after the shutdown came to an end, Senator John Cornyn, the Republican whip, wrote: “Republicans will always have internal debates, but—more importantly—we share a determination to reverse the destructive policies of the past five years.” Republicans, Cornyn added, “should remain united in blocking Senate Majority Leader Harry Reid’s attempt to pack the D.C. Circuit, which is America’s second-most-influential judicial body.”
In November, Republicans blocked votes on all three D.C. Circuit nominees. An exasperated Harry Reid began to gauge, once again, whether he had the fifty-one votes he needed to invoke the nuclear option. Speaking of the Republicans, he observed, “They have done everything they can to deny the fact that Obama has been elected and then reelected. I have a right to change how I feel about things.” Democrats believed that Republicans, by blocking qualified nominees, had violated the terms of the 2005 Gang of Fourteen deal. The Republicans were not citing any “extraordinary circumstances”; they simply objected to the president who nominated these men and women. Ted Cruz admitted as much, telling judicial nominees: “You find yourself in the midst of a broader battle, and a battle on issues, many of which are unconnected to your professional background and qualifications.”
This time there would be no all-senators meeting in the Old Senate Chamber. And there would be no Gang of Fourteen to ride to the rescue. A majority of the Senate, fifty-five senators, were new to the institution, winners in wave elections of 2006, 2008, and 2010. Only five of the original Gang members remained in the Senate. The last generation to know the Senate as it h
ad traditionally been had all but faded from the scene. In its place stood former House members accustomed to simple majority rule and outsiders who had come to Washington with the express purpose of blocking anything and everything the president pursued. This younger generation was eager to stop wasting the Senate’s time and move quickly through our legislative priorities.
As Democrats gathered during our regular caucus lunches that November, the nuclear option dominated discussion. By then, Senate veterans like Patrick Leahy, Dianne Feinstein, and Barbara Boxer—initially reluctant to eliminate the sixty-vote threshold—had changed their minds, beaten down by unprecedented levels of partisanship. “You reach a point where your frustration just overwhelms and things have to change,” said Senator Feinstein. “I think the level of frustration on the Democratic side has just reached the point where it’s worth the risk.” I was among the frustrated newer members who were seeking some way around McConnell’s blockade. I was well aware of concerns that invoking the nuclear option might lead to chaos or a Senate without any rules at all. As chair of the Democratic Senatorial Campaign Committee (DSCC), I was also aware—agonizingly so—that I would forfeit my ability to do that job effectively if I voted against my party on this issue. In the end, I would support the rules change. I have since come to regret that vote more than any other I have cast.
The only consistent voice in opposition was Carl Levin’s. Notwithstanding his over thirty years of service, I judged him to be the least cynical person in the United States Senate. Week after week, with his sleeves rolled up over his elbows and his glasses resting on the tip of his nose, Levin would say, “Don’t do this.” He reminded us that if we actually held the Republicans to the rules—making them hold the floor by means of a filibuster for a weekend or two—they’d think twice (because they wanted to get home). More important, Levin argued that changing the rules by a bare majority, instead of the sixty-seven votes required by the rules of the Senate, would mean that any majority could impose—or destroy—any rule it wanted at any time. In effect, such a rules change would mean there were no rules; any rule could vanish at the whim of a majority. He presciently observed that today’s majority would be different from tomorrow’s. “When the precedent is set that a majority can change the rules at will on judges,” Levin said, “that precedent will be used to change the rules on consideration of legislation, and down the road, the hard-won protections and benefits for our people’s health and welfare will be less secure.”
Meanwhile, Mitch McConnell warily observed the scene as Democrats barreled toward the nuclear option. “Obviously, the majority in any given point in the history of the United States Senate could take the view that they want to change the rules with a simple majority,” McConnell said in the midst of the debate. “So far majorities from both sides over the years have resisted the temptation to break the rules to change the rules. But we know full well that the majority could decide to change the rules if they so chose.” McConnell understood that there were no longer the votes to block the nuclear option. Instead, a new understanding of the ways of the Senate was taking hold. Both sides now assumed that if we don’t do it to them, they will do it to us. A cold war of preemptive retribution lay ahead.
And McConnell would be sure to exploit it. McConnell is patient, strategic, undistracted, impervious to give-and-take (except when he is taking everything)—and, in a political sense, ruthless. If Sean Hannity bad-mouths him, he doesn’t care. If 80 percent of America hates him, he doesn’t care. There is not a vote that is taken or a statement that he makes that isn’t calibrated not only to win elections but also to achieve his strategic vision, which is very limited: cutting taxes and putting conservative judges on the bench.
Just before the Senate’s Thanksgiving break, Harry Reid initiated the nuclear option, raising a point of order asserting that instead of requiring sixty affirmative votes, the Senate rules now required only fifty-one affirmative votes for all judicial offices other than the Supreme Court. The procedural mechanics behind the point of order were complicated; someone with a taste for medieval theology might enjoy them. Suffice it to say that the Senate parliamentarian refused to ignore the plain language of the Senate’s rules, and the presiding officer refused to sustain Reid’s point of order. Senator Reid then moved to appeal the ruling of the chair to the entire Senate, an appeal that would require only a majority to sustain.
Fifty-two senators, all Democrats, voted with Reid to overturn the chair’s decision; forty-eight voted against. Henceforward, the threshold vote for confirmations, not including those to the Supreme Court, was now a simple majority: “That is the ruling of the chair.”
The language of the rule had not changed; the Senate rules still required that “three-fifths of the Senators duly chosen and sworn” must vote in the affirmative. But those words had lost their meaning. Debate would now end when fifty-one senators voted to end it.10
Even before the drama of the nuclear option vote, McConnell had prefigured the second act. He declared in a floor speech that the use of the nuclear option by the Democrats would have implications for the Supreme Court, even if the intention had been to make Supreme Court nominees an exception:
They want to do it in such a way that President Obama’s agenda gets enacted but that a future Republican President could not get his or her picks for the Supreme Court confirmed by a Republican Senate using the same precedent our Democratic friends want to set. They want to have it both ways. But this sort of gerrymandered vision of the nuclear option is wishful thinking … If the majority leader changes the rules for some judicial nominees, he is effectively changing them for all judicial nominees, including the Supreme Court.
He was correct in his assessment that Democrats wanted it both ways and equally correct that we couldn’t have this. He put up no fight, daring Democrats to change the rules:
Let me say we are not interested in having a gun put to our head any longer. If you think this is in the best interests of the Senate and the American people to make advice and consent, in effect, mean nothing—obviously you can break the rules to change the rules to achieve that. But some of us have been around here long enough to know that the shoe is sometimes on the other foot … I say to my friends on the other side of the aisle, you will regret this, and you may regret it a lot sooner than you think.
We will never know whether Mitch McConnell, out of some supremely Machiavellian motivation, wanted Democrats to take this fatal step, but once it was taken we understood that at his first opportunity McConnell would extend the precedent we were setting to cover Supreme Court nominees. Senator Grassley said so the day before the vote:
If [Reid] changes the rules for some judicial nominees, he is effectively changing them for all judicial nominees, including the Supreme Court … I find it hard to believe members of the majority leader’s caucus would actually believe they could change the rules on lower court nominees, and then turn around and filibuster a future Republican president’s Supreme Court nominee.
McConnell knew that day that he was pocketing a treasure, something he could pull out and use to his advantage later.
In the event, after invoking the nuclear option, Democrats confirmed ninety-six judges—including the three nominees to the D.C. Circuit and eleven other circuit court judges. Less than a year later, Republicans won the midterms by a landslide majority and retook the Senate. Now it no longer mattered whether the confirmation threshold was sixty or fifty; the new majority leader, Mitch McConnell, would determine who would and who would not get a vote. In President Obama’s last two years, the Republican-controlled Senate confirmed only twenty-two judges, the lowest total since the final two years of Harry Truman’s presidency.11 As a result, Obama’s administration left open to his successor more than one hundred vacancies, a record number and almost sixty more than Obama had inherited from George Bush.
More surprising than the Republicans’ midterm recapture of the Senate would be the 2016 election of Donald Trump as president
of the United States. Needless to say, this possibility never informed the Democratic caucus’s debate about whether to invoke the nuclear option back in 2013. Monday-morning quarterbacking of any kind deserves a skeptical view. Nevertheless, I suspect that if Carl Levin had been able to add to his argument, “Oh, by the way, Mitch McConnell will block Barack Obama from filling a vacancy on the Supreme Court and use the prospect of filling it with a conservative to help elect Donald Trump, the master of ceremonies on The Apprentice,” there would not have been five votes to change the rules.
III. “Do Your Job”
Justice Scalia died two years after the nuclear option detonated. In this climate and perhaps hoping that cooler heads would prevail, President Obama nominated Merrick Garland, the chief judge of the D.C. Circuit, as his choice to fill the Supreme Court vacancy. I had known Merrick Garland for a quarter of a century. I worked for him fresh out of law school, when both of us served in the deputy attorney general’s office at the Department of Justice. I never heard another lawyer—or anyone, for that matter—refer to Garland without the highest admiration. He set the standard for excellence.
The Land of Flickering Lights Page 5