Greatest Democratic Judicial Hits

What Republicans learned from Harry Reid and Barack Obama.

Earlier this week we chronicled New York Senator Chuck Schumer’s faked alibi for his categorical 2007 demand that Democrats reject any George W. Bush nominee if a vacancy had emerged in his last 18 months in office. But there is so much more to recall:
• When Democrats ran the Senate from June 2001 to January 2003, they denied even a hearing before the Judiciary Committee to 32 of Mr. Bush’s nominees. When Republicans regained a 51-49 majority in the next Congress, Democrats broke the then-longstanding Senate norm of granting nominees an up-or-down vote. Before 2003, only one judicial nominee had been blocked with a filibuster, and that was the bipartisan 1968 rebellion against promoting the ethically challenged Justice Abe Fortas to Chief Justice.
Democrats applied the higher 60-vote standard to a rainbow coalition of Bush nominees, judging them not by traditional measures like experience or temperament or even “diversity.” They simply didn’t like their politics.
The targets included Priscilla Owen (a woman), Janice Rogers Brown (a black woman) and Miguel Estrada (a Hispanic). The 28-month Estrada filibuster was especially egregious because Democrats feared the smart young attorney’s ethnic background might make him formidable Supreme Court material if he served on the D.C. Circuit Court of Appeals.
• When Mr. Bush nominated Samuel Alito to the High Court in 2005, Democrats attempted to give him the same treatment. Some 25 Senators voted to support a filibuster, including Barack Obama, Joe Biden, Hillary Clinton, Harry Reid, John Kerry, Pat Leahy and Mr. Schumer.
White House spokesman Josh Earnest this week described Mr. Obama’s filibuster as merely a “symbolic vote” to protest Mr. Bush. He added that Mr. Obama “regrets the vote” because Democrats “shouldn’t have looked for a way to just throw sand in the gears of the process. And, frankly, looking back on it, the President believes that he should have just followed his own advice and made a strong public case on the merits.” No doubt he does—now.

• After blockading Mr. Bush’s judicial slate, Mr. Reid as Senate Majority Leader changed the rules for Mr. Obama’s nominees on a partisan vote. Senate rules require a two-thirds vote to change its rules in mid-session, but in 2013 Mr. Reid forced through a change solely with a narrow Democratic majority.
This allowed him to trigger the “nuclear option” lowering the Senate threshold for appellate but not Supreme Court nominees to 51 from 60. The goal was to pack the D.C. Circuit with left-leaning judges who would bless Mr. Obama’s abuses of power, especially on health care and climate regulation. Mr. Obama was cheering him on all the way.
• Mr. Reid now argues that the Senate’s “constitutional duty” is to give nominees an up-or-down vote, but in a May 2005 speech on Mr. Bush’s judges, he offered a different interpretation: “The duties of the Senate are set forth in the U.S. Constitution. Nowhere in that document does it say the Senate has a duty to give Presidential appointees a vote. It says appointments shall be made with the advice and consent of the Senate. That is very different than saying every nominee receives a vote.”
It’s impossible to know what Mr. Reid really believes, because whatever he claims to believe at any moment is whatever will maximize his own political power. Mr. Obama does have the power under the Constitution to nominate a replacement for Justice Antonin Scalia, but Senate Republicans also have the right to ignore it or vote to confirm or deny.
Republicans have no obligation to submit to Democratic judicial ultimatums, which change with the political seasons




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