Call it poetic justice or political karma — the master Mitch McConnell may soon destroy one of his favorite weapons of mass obstruction.
To overcome Democratic opposition to Supreme Court nominee Neil Gorsuch, Majority Leader McConnell is ready to end the Senate’s 60-vote requirement to advance Supreme Court nominees to confirmation and instead allow Gorsuch’s to move on a simple majority of 51 in the 100-member Senate. This is considered such a dramatic break from Senate tradition that it’s called the “nuclear option,” the hyperventilated term revealing how highly the Senate regards itself.
It’s amusing to hear McConnell criticize Democrats for using tactics that he perfected. During his years as minority leader, McConnell wielded Senate rules, such as the 60-vote requirement, like no one ever before. McConnell’s goal: block President Barack Obama’s appointments and legislative agenda. Last year, as majority leader, McConnell refused to give Obama’s Supreme Court nominee Merrick Garland so much as a hearing on the invented grounds that the appointment rightfully belonged to the next president.
Interestingly, McConnell refused during a Sunday appearance on “Meet the Press” to support formalizing his invented rule, which suggests to us that if a high-court seat came open 11 months before a Republican president’s exit, McConnell would view the situation differently.
McConnell is appealing to principle in his pleas to Democrats to avoid a partisan filibuster. But he has only his past actions to blame for Democrats’ stubbornness. Two wrongs might not make a right. But in Washington’s realpolitik, rewarding a wrong guarantees you’ll be wronged again. Democrats, logically enough, think that easing Gorsuch’s confirmation would reward McConnell’s intransigence on the Obama nominee. Some credit McConnell for Trump’s narrow victory because the vacant Supreme Court seat motivated conservative voters.
Republicans also are quick to point out that as majority leader Democrat Harry Reid “went nuclear” in 2013 by ending the 60-vote requirement for lower court and executive branch appointees. At the time, there were three vacancies on the U.S. Court of Appeals for the District of Columbia, second in importance only to the Supreme Court. McConnell was so effective at blocking Obama’s nominees that President Donald Trump inherited almost twice as many judicial vacancies (an estimated 103) as Obama did (53).
Eroding the 60-vote requirement, also known as the filibuster, does alter the nature of the Senate in ways that McConnell once decried. The Senate would become less consenus-oriented and deliberative as the minority party lost clout. The filibuster, however, is mentioned nowhere in the Constitution — the Senate created it — and has sometimes been used for ill, including to prolong Jim Crow laws by blocking civil rights legislation.
The objections to Gorsuch are rooted in substance not politics alone. The Coloradan came off less qualified in person than on paper. His record reflects an intemperate zeal to dismantle protections for workers, consumers, clean water and air.
Perhaps a Supreme Court seat for Republicans is McConnell’s ultimate plum. But in 2013 when Democrats changed the 60-vote rule for some appointments, McConnell said, “It’s a sad day in the history of the Senate.” McConnell, who perfected the obstructionist model, is reaping what he sowed.