Senate Republicans went “nuclear” Wednesday: In a party-line vote, Mitch McConnell’s caucus changed the upper chamber’s rules, so as to maximize the number of judges Donald Trump will get to appoint, and minimize the Democratic Party’s say over who those judges will be.
Specifically, Republicans slashed the minimum time between ending debate over a district court (or Executive branch) nominee from 30 hours to two. Before the rule change, Trump was already handing out lifelong judgeships to reactionary lawyers at a historic pace. Thanks, in part, to McConnell’s tireless obstruction of Barack Obama’s judicial nominees, Trump has already put more than 90 judges on the federal courts. Now, he’s poised to handpick another 128 (or so) before his first term is through.
And if Democratic senator Michael Bennet had his way, that number would be even higher.
Wednesday’s vote marked the third time in six years that a Senate majority had unilaterally changed the chamber’s rules to advance its preferred appointments. The first time came in 2013, when Democrats abolished the filibuster on non-Supreme Court judicial nominees. The reason Harry Reid went nuclear was simple: Republicans would not let Obama make any appointments to the D.C. Circuit Court because doing so would have jeopardized that body’s conservative majority — and eliminated a last line of defense against “big government” regulations. At the time, Senator Bennet felt that his Republican colleagues had left him no choice — to preserve the president’s constitutional right to appoint judges, he had to support the abolition of a “minority right” in the Senate.
But a lot has happened since 2013. And if Michael Bennet has learned anything over the past six years, it’s that you should never doubt Mitch McConnell’s commitment to Senate norms or basic fairness. Therefore, Bennet now believes that if Democrats hadn’t abolished the judicial filibuster in 2013, McConnell would have never considered weakening it in the Trump era: Even if Democrats refused to confirm a far-right justice to the Supreme Court, McConnell would have just sighed and implored the president to find another, more moderate nominee (someone like Merrick Garland, perhaps). And if honoring procedural norms meant forfeiting an opportunity to secure conservative control over the federal bench for a generation, well, that’s a price McConnell would have gladly paid for rewarding the Democratic Party’s demonstration of good faith in 2013.
This all might sound more delusional than a 3 a.m. presidential tweetstorm. But if Bennet does not believe in Mitch McConnell’s commitment to fairness, then this apology would make even less sense:
Notably, Bennet is not alone in this position. It actually might be the consensus view of Chuck Schumer’s caucus. The Minority Leader himself has said that he regrets going nuclear in 2013. “I argued against it at the time,” Schumer explained in 2017. “I said both for Supreme Court and in Cabinet should be 60 because on such important positions there should be some degree of bipartisanship. I won on Supreme Court, lost on Cabinet. But it’s what we have to live with now.”
Again, this contention is only coherent if we stipulate that Senate Republicans would have dutifully honored the Democrats’ right to filibuster judges — even if it meant sacrificing a once-in-a-generation opportunity to reshape the Judicial branch in the conservative movement’s image — so long as Harry Reid had held his fire six years ago. If we don’t make this assumption, then the only thing Democrats would have accomplished by preserving the judicial filibuster in 2013 would have been to help McConnell keep even more judgeships open for Donald Trump.
And that assumption is, of course, insane. McConnell’s contempt for fair play and commitment to consolidating his party’s power are not secrets. The man wears his bad faith on his sleeve. This is the guy who said publicly in 2010 that the congressional GOP had to prioritize undermining Barack Obama over all policy goals. He’s the man who raged about the irresponsibility of Obama’s fiscal stimulus — in the depths of historic recession — then championed Trump’s deficit-financed tax cuts in the middle of years-long expansion. The one who refused to grant Merrick Garland a single hearing, citing a Democratic precedent for nullifying Supreme Court appointments in a presidential election year that did not exist.
It defies credulity that anyone could believe that McConnell has qualms about engaging in unprecedented violations of Senate norms — let alone how people who work with him everyday could believe such a thing.
But Bennet, Schumer & Co. are delusional (or at least, playing dumb) about more than just McConnell. The Senate Majority Leader is a uniquely nihilistic political figure. But it is true that the Senate’s escalating hardball did not start with him. The more fundamental reality here is that our governing institutions were not designed for ideologically polarized parties. Which means that Democrats and Republicans simply cannot remain faithful to both their constituents and our government’s institutional norms.
McConnell’s refusal to consider Garland’s nomination was radical and unprecedented. But if I believed that human life began at conception, corporations were people, and labor unions were instruments of tyranny — which is to say, if I were a conservative — I would never have forgiven McConnell if he had put Senate norms above blocking a liberal Supreme Court majority. Why on earth should the traditions of a millionaire’s club take precedence over stopping “fetal genocide?”
If the Republican Party were a less extreme institution — and Mitch McConnell a more honorable individual — there would surely be a bit more bipartisan cooperation in the Senate. But the stakes of partisan conflict would still strain institutions like the filibuster. Republican presidents should not expect Democratic senators to vote for judges who believe corporate campaign contributions are speech. And Democratic presidents shouldn’t expect conservatives who owe their Senate seats to the pro-life movement to confirm judges who oppose red-state restrictions on abortion access. Politics is not supposed to be a chummy elite game. It is how we collectively decide whose values will be upheld and whose rejected; whose freedom expanded and whose restricted; whose lives are worth saving and whose health care would simply be too expensive to provide.
For all his hideous faults, Mitch McConnell understands this. And if Michael Bennet doesn’t, then he has no business representing the Democratic Party in the Senate.