The only reason Mitch McConnell and Donald Trump don’t have even more Article III judicial vacancies to fill is because when Harry Reid was majority leader he nuked the filibuster for lower court appointments. Reid was criticized at the time, and when the Democrats lost the majority in the Senate in 2014, he was criticized again. When Donald Trump won the presidency and Senate Majority Leader Mitch McConnell nuked the filibuster for Supreme Court appointments, allowing McConnell to finish his plan of stealing a Supreme Court seat and hand it to Neil Gorsuch, Reid was again criticized for his actions.
I never agreed with the critique. The notion that Mitch McConnell wouldn’t do something to grab more power, but for the fact that Harry Reid did it first, strikes me as laughably naïve. McConnell was willing to steal an entire Supreme Court seat, he wasn’t going to be flummoxed by the filibuster right at the point of victory. If anything, Reid should have nuked the filibuster even earlier during Obama’s term. And lord knows that Obama should have been ready to fire off more and more progressive judges right from the moment he took office. Harry Reid was one of the only people in the Democratic leadership who fully appreciated what Republicans were willing to do to the courts. Compared to current Senate Minority Leader Chuck Schumer, Reid looks like goddamn Braveheart to Schumer’s Robert the Bruce.
Now, Harry Reid is back with an op-ed in the Salt Lake Tribune, challenging the Democrats to take the Supreme Court and other judicial appointments seriously. And he’s telling Dems that they have to be willing to go to the mattresses to fight the Republicans for the future of the courts:
When I hear Democrats running for president talk about their ideas to address our country’s urgent problems, I always find myself returning to the same question: What will you do to protect the Supreme Court of the United States?..
[A]ny Democratic candidate serious about addressing the urgent crises facing our country needs a plan for dealing with the Supreme Court.
This starts with a public commitment to nominate bold, progressive lawyers to the court. Mitch McConnell’s elimination of the filibuster for Supreme Court nominees means that, if Democrats win back the Senate next year, the next Democratic president will not have to cater to unreasonable Republicans to find a justice who can win 60 votes. Instead, there will be an opportunity to nominate justices who have spent their careers fighting for progressive values and can rebalance a Court that is now biased towards the rich and the powerful.
Reid cited Demand Justice’s list of 32 potential nominees (we wrote about that list here) as a good starting point for the discussion of what “bold, progressive lawyers” actually look like.
As a person who understands what courts do, and specifically what conservative, FedSoc jurists do, the fact that the Democratic primary has not been focused on judicial issues is frustrating and actually crazy-making. There is NO plan, not a progressive one, not a moderate one, forwarded by a Democrat running for President which can survive the Roberts Court as currently constituted. In many cases, the Dems don’t even have plans that will survive the freshly stacked Circuit Courts of Appeal. I simply do not think that most people are prepared for what the Federalist Society is prepared to do, and now able to do thanks to Trump and McConnell.
The POINT of stacking the courts as they have isn’t just to advance the Republican agenda, it’s to retard any shred of “progress” Democrats might try to achieve, should Republicans even lose their grip on electoral power. McConnell has turned the courts into the Republican bulwark against electoral majorities that Republicans can no longer win. The candidates who aren’t prepared to deal with that are selling an entire fantasy about what happens next, should any of them win.
Democrats need to take back the Senate, and pack the courts at ALL levels. OR, they lose. They win the White House AND the Senate AND they pack the courts OR nothing happens. Democrats need to shoot the moon, or they lose. Taking back the White House, but not the Senate and not the Courts will make people feel better, but it’s not going to change a damn thing.
Harry Reid: Democrats running for president need a plan for the Supreme Court [Salt Lake Tribune]
Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.