If Amy Coney Barrett joins the Supreme Court later this year, conservatives will rightly be thrilled, but maybe Democrats and the Left will question their scorched-earth tactics of the past few years.
Had Democrats been more restrained and more bound by norms of the judicial confirmation process, Barrett wouldn’t be in the position she is today, as the nominee, with 51 very likely votes in the U.S. Senate.
When talking about the judicial wars, it’s always possible to go back to Miguel Estrada, Robert Bork, or even Roe v. Wade, but here it’s not necessary. We can go back to 2013 and look at four decisions made by Senate Democrats. If they had declined to overreach in just one of these four, Barrett wouldn’t be here.
1) Nuking the filibuster in 2013
Harry Reid, the former Democratic majority leader, faced heavy pressure for years from the liberal judicial groups, especially abortion advocates, to go nuclear. Finally, in President Barack Obama’s second term, Reid pushed the button.
Reid abolished all Senate rules, in effect, by declaring for the first time ever that a majority of senators could change Senate rules. Then the Democratic majority used this power to abolish the filibuster on nominees to district and circuit courts. It now took only 51 votes, rather than 60, to invoke cloture and proceed to a nomination of a circuit court judge.
About 4 1/2 years later, Barrett’s nomination moved to the floor with a 54-42 cloture vote. Were it not for Reid’s nuclear attack in 2013, Barrett might not be a federal judge today.
2) Filibustering Gorsuch
The next filibuster nuke was by Republican leader Mitch McConnell in 2017. Democrats filibustered the eminently qualified and totally uncontroversial nominee Neil Gorsuch, picked to replace the late conservative Justice Antonin Scalia.
This filibuster by Democrats made it perfectly clear that they intended to filibuster every single President Trump nominee to the Supreme Court, no matter what. With that fact evident, it was easy for McConnell to convince enough Republicans to vote, in the there-are-no-rules environment he inherited from Reid, to nuke the filibuster for Supreme Court nominees.
Had Democrats gone the high road here, and allowed a vote on Gorsuch as Republicans had allowed votes on every Democratic nominee for a generation, then McConnell would not have had the opportunity to push the nuclear button until Anthony Kennedy’s retirement in 2018. At that point, when Democrats filibustered Kavanaugh, it might have been harder for McConnell to get to 51 votes, since replacing Kennedy with Brett Kavanaugh constituted moving the court to the right.
Had they not filibustered Gorsuch, Trump might have been forced to nominate a 60-vote-consensus candidate to replace Kavanaugh, and the filibuster might still exist today for Supreme Court candidates.
3) ‘The dogma lives loudly within you.’
Conservative legal scholars were always going to be excited by Barrett’s nomination to the circuit court. But what made her a cause celebre was the Democrats’ nasty culture war attack on her. [ … ]