National Review Online employed scare tactics about filibuster reform and its potential to embolden Senate Republicans to force through their extreme judicial nominees in the future, all while ignoring that the federal judiciary is already stacked with conservative jurists and that the GOP's current mass filibustering is unprecedented.
NRO contributor Ed Whelan warned that Senate Majority Leader Harry Reid's (D-NV) use of the “nuclear option,” which would allow a simple majority vote on President Obama's judicial nominees, could embolden Republicans to use the same maneuver if they were to gain control of the Senate in the future. From Ed Whelan's November 20 post (emphasis original):
I don't see how Reid can abolish the filibuster vis-à-vis pending judicial nominees without setting a clear precedent that would enable a future Senate majority, in the very midst of a confirmation battle over a Supreme Court nominee, to abolish the filibuster with respect to that nominee.
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It would be funny indeed if folks on the Left who evidently rue Senate Democrats' opportunistic decision in 2003 to inaugurate the filibuster as a weapon against judicial nominees were now to support an opportunistic rule change that would lay the foundation for making it much easier for a Republican president to appoint anti-Roe Supreme Court nominees.
Whelan's NRO colleague, Carrie Severino, joined the “make my day” chorus in a similar post on Reid's decision to invoke the nuclear option, saying, “I hope he does conservatives the favor.” Severino later reiterated that point on PBS Newshour with Gwen Ifill:
I hope that Harry Reid does pull the trigger on that, because what's happening now is, he holds the filibuster hostage every time he wants something, without having to abide by the rules.
But then, when the shoe is on the other foot one day and he's going to -- he -- the Senate Democrats were very liberal in their use of the filibuster, unprecedented level of filibustering of judges. I think we should have the same rules on both -- for both teams.
It should be noted that it is actually Obama's mainstream nominees that have faced unprecedented blanket obstruction from Senate Republicans -- not George W. Bush's picks. In fact, it is this rampant blanket filibustering of Obama's nominees, both judicial and executive, that have forced Senate Democrats to consider invoking the “nuclear option” just to get a vote. Bush, on the other hand, still managed to have four of his extreme nominees confirmed to the D.C. Circuit.
Moreover, Severino and Whelan's gleeful calls for Reid to invoke the nuclear option because it will help future conservative jurists be confirmed to the bench ignore that the federal judiciary is already knee-deep in right-wing ideologues. Severino, of all people, should understand this. The same day she dared Reid and Senate Democrats to go ahead with the nuclear option, she also wrote a piece celebrating the Supreme Court's refusal to block an anti-choice law that could ultimately close all but five clinics that provide abortion services in Texas. Severino called the ruling “the rare easy abortion decision.”
What Severino fails to note is that the Texas law was upheld because Bush was able to nominate and receive up-or-down votes on extremely conservative jurists. One of those judges, Fifth Circuit Court of Appeals Judge Priscilla Owen, wrote the decision that reinstated the restrictive Texas abortion law. Elsewhere, Bush's appointees have invalidated Obama's appointments to the National Labor Relations Board, and have made it easier for for-profit secular corporations to deny contraceptive coverage to their employees.
At any rate, Whelan and Severino's threats about future Republican behavior and the specter of anti-choice judges feel a little empty, since it's rather obvious that the GOP will go nuclear the moment they gain a Senate majority -- regardless of what the Democrats do now. They already came close in 2005, before Democrats mistakenly thought they had a deal to prevent the exact sort of indiscriminate filibusters occurring today and compromised on a handful of Bush's ultra-right-wing judicial nominees. As The New York Times' Jesse Wegman observed, NRO's spin might reflect that of Republican Sen. Chuck Grassley (IA), but it doesn't reflect the unprecedented reality of the GOP position:
Democrats are deluding themselves if they believe that protecting the filibuster now means that it will be protected for them in the future.
The Republicans have already shown they will not hesitate to go nuclear at the next provocation -- as they last threatened to do in 2005, when Democrats filibustered several of President Bush's nominees. That scenario, advanced by a comparatively moderate caucus, was avoided at the last minute by a deal which permitted filibusters only under “extraordinary circumstances.” It now appears that Republicans consider the Obama presidency itself to be an extraordinary circumstance.
So resisting a rules change today -- when real, qualified judges are on the table -- in order to preserve the filibuster for some hypothetical tomorrow when Republicans control the Senate, is a lose-lose proposition for Democrats. President Obama's judges will not be confirmed, and when Republicans are back in power they will change the rules themselves and confirm their own judges (presumably after they have analyzed the numbers and determined that the D.C. Circuit once again needs a full slate).