The Supreme Court bind Democrats face is their fault
Democrats are seething over their inability to stop Republicans from confirming Judge Amy Coney Barrett and securing a 6-to-3 conservative majority on the Supreme Court. They have no one to blame but themselves. Had it not been for their breaches of long-standing precedent, Republicanswould have zero chance of confirming Barrett — and Justice Brett Kavanaugh would not be sitting on the high court today.
For Democrats, history always seems to begin with the GOP refusal to confirm Merrick Garland in 2016. Democrats made three catastrophic mistakes that led them to this moment:
Their first blunder came in 2003 and 2004, when they broke precedent by blocking 10 of President George W. Bush’s judicial nominees, including the eminently qualified Miguel Estrada, for the U.S. Circuit Court of Appeals for the District of Columbia Circuit. Never in U.S. history had an appellate court nominee been successfully filibustered before. The Senate Democrats’ actions were so brazen that in 2005, Republicans briefly considered eliminating the judicial filibuster. But in the end, they backed down — recognizing that, as then-Sen. Joe Biden, D-Del., warned the mon the Senate floor, “you may own the field right now, but you won’t own it forever.”
Back then, Biden told Republicans, “I pray God when the Democrats take back control, we don’t make the kind of naked power grab you are doing.” Yet after the Obama-Biden administration took office and Democrats won back the Senate, Senate Majority Leader Harry Reid, D-Nev., did exactly what Democrats had warned Republicans not to do, eliminating the filibuster for lifetime appointments to the federal bench for all but Supreme Court nominees and allowing Democrats to fill the circuit courts with liberal judges.
This was their second catastrophic mistake, and it came back to haunt them when the Senate flipped back to GOP control and a Supreme Court seat came open during President Barack Obama’s final months in office. Had it not been for these two breaches of precedent by Democrats — first invoking the judicial filibuster and then eliminating it — Senate Majority Leader Mitch McConnell, R-Ky., would never have had enough support in his caucus to block a vote on Garland’s nomination in 2016 to succeed the late justice Antonin Scalia.
Far from being chastened, in October 2016 Reid bragged that when Hillary Clinton won the presidency and Democrats took back the Senate, they would eliminate the filibuster for the Supreme Court, confirming her nominees by simple majority vote. It didn’t work out as they planned. Republicans held the Senate, and Donald Trump won the White House.
That led to the Democrats’ third grievous mistake when, in a fit of pique over Garland, they filibustered President Trump’s nomination of
Neil Gorsuch. Gorsuch was so obviously qualified in intellect, character and temperament that hewon the support of liberal Harvard Law professor Laurence Tribe and former Obama acting solicitor general Neal Katyal.
Had Democrats let Gorsuch through, the 60-vote threshold for future nominees would still be in place today. There is zero chance Republicans would have would been able muster the votes to eliminate it to confirm Kavanaugh in 2018, which means his nomination would have failed. And Republicans would have zero chance of eliminating it to confirm Barrett today.
In other words, the Democrats’ actions backfired on them every step of theway. Have they learned their lesson? Not at all. Now they are threatening to break precedent yet again, by packing the court if Republicans confirm Barrett and they take the Senate in November. Her confirmation is nothing more than a pretext. Democrats were planning to pack the court long before Ginsburg died.
In 2019, Senate Democrats— including Richard Durbin, D-Ill., the second-ranking Democratic leader — threatened justices in an amicus brief, declaring, “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’”
Democrats were for the filibuster under Bush, against it under Obama, for it again under Trump — and now they want to eliminate it under a President Biden for legislation as well as nominations so they can pack the Supreme Court. Court-packing will backfire on them, as well. Because even if they succeed, at some point Republicans will win back power and use the precedent Democrats set to install justices of their own.
They should heed Biden’s 2005 words of warning: They may own the field come November, but they won’t own it forever.