Democrat lawmakers undoubtedly resisted the confirmation process of both Supreme Court Justices Neil Gorsuch and Brett Kavanaugh—as they try to resist everything President Trump initiates—but, if it wasn’t for what Democrats did five years ago, their confirmations may have never come.
As the Washington Examiner reports, Wednesday marks the five year anniversary of Democrat lawmakers exercising the “nuclear option” and ending the filibuster process for judicial nominations.
According to the report, on November 21, 2013, Democrats voted to end the main option for the minority party to contest judicial picks. In their vote, they changed an existing requirement of 60 votes to end filibusters, replacing it with a simple majority vote.
From the report:
This is a story of how their best-laid plans went awry.
Senate Democrats started planning a hostile takeover of the judicial appointment process in 2001. Just days after President George W. Bush took office, Senate Democratic leader Tom Daschle, D-S.D., said they would use “whatever means necessary” to fight his judicial nominees. At a May retreat in Florida, that vow became a strategy to, as the New York Times described it at the time, “change the ground rules” of the confirmation process.
Democrats fought hard for the implementation of the filibuster when it was convenient for them. They challenged the Bush administration and undoubtedly curbed his judicial impact.
Then, in 2008, the tide changed and Barack Obama won the presidency.
In the ensuing years, the Republican minority looked to stand in the way of the president’s prerogative to appoint new judges.
For the first time in a dozen years, they controlled the entire judicial appointment process. After 2010, the Republican-controlled House of Representatives, however, did not support key parts of Obama’s political agenda. Obama decided that if he couldn’t enact his agenda, he would impose it by executive branch bureaucrats issuing regulations and sympathetic judges approving them when challenged in court. But there was a wrinkle.
By the end of 2013, the primary court for reviewing agency regulations, the U.S. Court of Appeals for the District of Columbia Circuit, had four Republican-appointed judges, four Democrat-appointed judges, and three vacancies. Republicans followed the Democrats’ playbook, using the filibuster to block four Obama nominees to that court.
The solution seemed simple: Democrats had to abolish the very nomination filibusters they had used so aggressively just a decade earlier. But it would take 67 votes to directly amend Rule 22 so it no longer required “three-fifths of the senators duly chosen and sworn” to invoke cloture.
The explosive “nuclear option” changed the interpretation of “three-fifths” to mean 51 votes in the Senate, effectively ending the Republican minority’s ability to stop Obama and the Democrat majority from appointing the judges.
Via the report, “Democrats got what they wanted when Obama quickly filled those three D.C. Circuit vacancies. In 2014, the Senate confirmed 89 judges, twice the annual average and the third-highest annual total in history.”
But, the tide turned again.
In the 2014 congressional elections, Republicans won a majority in the Senate.
And, in the 2016 presidential election, Trump defeated Democrat nominee Hillary Clinton.
Republicans had everything they needed to orchestrate judicial appointments. And, with Democrats, just years prior, stripping the minority’s ability to filibuster the appointments, Democrats had to sit powerlessly and watch Trump and Republicans confirm two Supreme Court justices.
In April 2017, they used the same nuclear option to prohibit filibusters of the one position left alone by Democrats: the Supreme Court. As a result, Justices Neil Gorsuch and Brett Kavanaugh will be serving for decades to come, and President Trump may be able to appoint another justice in the next two years.