Liberals and leftists must have been chagrined by Schumer’s all-too-revealing exultation as he recently celebrated Joe Biden’s election victory, “Now we take Georgia, then we change America!” If Schumer wins Senate control, he can indeed “change America” by beginning the undoing of the capstone achievement of McConnell’s steady, disciplined six years as majority leader: confirmation of three Supreme Court justices and 53 appeals court judges.
Then-majority leader Harry M. Reid (D-Nev.) in 2013 destroyed the filibuster as a check on radicalism on the judiciary. Under the pre-Reid rules, judicial nominees needed 60 votes to be confirmed. That threshold was abused by Democrats for years. In early May 2001, President George W. Bush made his first 11 nominations for federal appeals courts. The group included the future Supreme Court Chief Justice John G. Roberts Jr. It also included a previous nominee of President Bill Clinton, Roger L. Gregory, who had been placed on the U.S. Court of Appeals for the 4th Circuit via a temporary recess appointment. Bush sought conciliation and consensus, and his gracious gesture of renominating Gregory was met by … scorn and obstruction.
Reid and then-ranking Democrat on the Judiciary Committee Patrick J. Leahy (Vt.) went into full opposition mode (though they did confirm Gregory) — an opposition that became even more effective when Sen. Jim Jeffords of Vermont switched parties and Democrats took control of the Senate and of proceedings on the Judiciary Committee. The obstruction became a blockade.
When Republicans took Senate control in January 2003, Leahy and Reid were back in the minority and used the old filibuster to keep many superb nominees from confirmation, including William Pryor, Miguel Estrada and Carolyn Kuhl. The obstruction became so absurd that then-Senate Majority Leader Bill Frist (Tenn.) threatened to use the “nuclear option” — a change of the Senate’s rules to simple majority confirmation.
Frist did not have to use that option because center-left Democrats led by Sen. Ben Nelson (Neb.) teamed up with institutionalist Republican senators, led by John McCain of Arizona, to craft the “Gang of 14” agreement. That agreement sacrificed some fine choices but broke the blockade on Pryor and other first-rate nominees, while sacrificing some, including Estrada and Kuhl.
When Republicans blocked many of President Barack Obama’s judicial nominees, Reid actually used the nuclear option that Frist had only threatened to employ. The “Reid Rule” of 2013, allowing a simple majority vote to change the rules of the Senate, forever altered the institution. The filibuster was ended for all nominees, save those for the Supreme Court (an exception that McConnell subsequently ended, as he refused to allow Democrats to manipulate the rules to their benefit but not to the benefit of the GOP).
The left side of the Democratic Senate caucus wants to end the supermajority requirement for legislation as well. These are the same folks who want to increase the number of seats on the Supreme Court, “packing” it to guarantee that their radical agenda is realized. With Schumer as majority leader, this too would be on the menu.
Democratic Sen. Joe Manchin III of West Virginia has said that in a Democrat-controlled 50-50 Senate, he would not support ending the legislative filibuster or support court-packing. Some say this removes the threat of radical change regardless of Georgia’s Senate runoffs. But Manchin would almost certainly support most if not all of Biden’s judicial nominees. If Democrats win in the Peach State, conservatives can expect a liberal assault on the Trump-McConnell legacy of a federal bench bolstered by constitutionalism.
If Republicans continue to hold the Senate, it isn’t clear whether Biden would face, from McConnell, the sort of blockading that Reid practiced. Certainly nothing McConnell did would be unprecedented, thanks to Reid. But you can count on this:
If Perdue and Loeffler lose the Georgia runoffs, and Schumer takes charge of the Senate, the federal judiciary will begin a leftward lurch with each Biden nominee confirmed by a simple majority. If Perdue or Loeffler wins, Biden will be more inclined to nominate moderate jurists, not hard-left “living Constitution” enthusiasts certain to be rejected.
In other words, if Mitch McConnell remains majority leader, radical lawyers need not apply for lifetime appointments in robes.