FEATURED:

GOP has always been aggressive in trying to weaponize the system of judicial nominations

GOP has always been aggressive in trying to weaponize the system of judicial nominations
© Getty Images

Republicans are in the midst of their Brett KavanaughBrett Michael KavanaughGraham vows to push Trump’s AG pick through Judiciary Committee Log Cabin Republicans leader 'not nervous' about conservative Supreme Court impacting LGBT rights Dem pollster says concerns over Kavanaugh were 'merit-based,' not about partisanship MORE victory lap, completing a multi-year run of maneuvering that has stacked the Supreme Court and lower courts with a conservative bent that will influence the judicial branch for at least a generation.

On the way to Kavanaugh's confirmation that was finalized last weekend, Republicans have also been able to reshape how the public and the media assess blame for how we got here over the last two decades.

ADVERTISEMENT
On the way to framing McConnell’s conservative blockade of the judiciary, a popular trend is emerging. Blame it on “both sides” and say that former Senate Majority Leader Harry ReidHarry Mason ReidManchin’s likely senior role on key energy panel rankles progressives Water wars won’t be won on a battlefield Poll finds most Americans and most women don’t want Pelosi as Speaker MORE’s (D-Nev.) decision to go “nuclear,” as Trent Lott first coined it in the early 2000s, was a chief catalyst for where we are today.

The Reid decision in 2013, of course, was to change Senate rules to a simple majority for cloture on lower court nominations but to preserve the 60-vote cloture threshold for the Supreme Court.

The negative framing of Reid’s decision is so pervasive that I have to acknowledge it is a Jedi mind trick that I have even fallen into myself and I worked for Harry Reid’s Senate leadership staff between 2009 and 2011 so I should know better.

While it is accurate to say that Republicans use the Reid nuclear decision as part of their justification and it was indeed a controversial move by the former Senate Majority Leader, it is intellectually dishonest to allow Republicans to claim this measure of whataboutism when it comes to their actions related to judicial nominees.

Yes, Reid went nuclear and it caused a lot of hand-wringing on both sides of the aisle. Republicans, who were in the minority, were outraged because of what it meant for their singular focus on shaping the court system in their image.

Yes, several Democrats within Reid’s own caucus were uncomfortable with the decision because of what it meant for the institution and the predictable comeuppance that was around the corner when Republicans took control and used the rule against Democrats to push through their nominees.

But context matters. Reid made this decision after years-long obstruction of judicial nominees by Senate Republicans led by McConnell. And to call it obstruction, as it’s commonly referred to in today’s political vernacular, just does not do it proper justice.

Sen. Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellTrump flubs speech location at criminal justice conference Sunday shows preview: Trade talks, Cohen sentencing memo take center stage Trump tells McConnell to let Senate vote on criminal justice reform MORE (R-Ky.) impeded and delayed Obama-era judicial nominees to historic levels. Because of McConnell’s systematic blocking of judicial nominees while Barack ObamaBarack Hussein ObamaMedia once hated HW — before using him to jab Trump Republicans missed best shot on keeping promise to cut spending California AG Becerra included in Bloomberg 50 list MORE was President, Donald TrumpDonald John TrumpJoaquín Castro: Trump would be 'in court right now' if he weren't the president or 'privileged' Trump flubs speech location at criminal justice conference Comey reveals new details on Russia probe during House testimony MORE entered the presidency in 2017 with nearly double the judicial vacancies that Barack Obama entered with in 2009.

The sheer magnitude of the Republican obstruction of Obama’s nominees, both judiciary and executive branch, is staggering.

At the time of the Reid nuclear option decision in 2013, there had been 168 filibusters of presidential nominees in the history of the country. 82 of those filibusters happened under President Obama and 86 filibusters under all other presidents combined. It was a Republican hijacking of the federal judiciary.

Pure and simple. They refused to allow former President Barack Obama to have any kind of meaningful influence over the judiciary as most presidents were historically obliged by their political opponents. While it may have been within the rules of the Senate, the McConnell blockade was fully inconsistent with the history of how Senate rules were used before that era.

So now we fast forward to present day. Sen. Mitch McConnell refused even a single hearing for Merrick GarlandMerrick Brian GarlandDebate over term limits for Supreme Court gains new life Roberts’ rebuke of Trump rings hollow, given justices’ conduct Heads up, GOP: Elections have consequences MORE’s nomination to the Supreme Court in 2016 after the death of Justice Antonin Scalia. This was another historically inconsistent and unprecedented move, regardless of the Republican talking points that attempt to justify it. And when Republicans took the White House and held the Senate and the House in 2016 they had their opportunity to fully operationalize their plan.

McConnell then force feeds the nomination of Neil Gorsuch in early 2017 by completing the Senate’s nuclear move and lowering Senate rules to make the Supreme Court only a simple majority instead of the 60-vote threshold that Reid kept in place in 2013. The Gorsuch seat, of course, should have been held by Merrick Garland to the Supreme Court whose nomination McConnell blocked for a year; now we arrive at Kavanaugh.

As the media now chooses to retell the history of judicial nominations over the last decade, the narrative has been shaped as laying equal blame on Democrats and Republicans. While tempting and easy, that’s simply untrue. Sure there is incremental brinksmanship in Congress, particularly the Senate, that both sides have contributed to and it’s appropriate to note. But in this current war over the judiciary, Republicans have been the aggressors using extreme tactics in both the minority and the majority to weaponize our system of judicial nominations. To lay equal blame at the feet of Sen. Harry Reid for responding to a battle over the court system that was brought to him by the hostile actions of Senate Republicans is a farce.

Joel Payne is a former deputy press secretary for Senate Majority Leader Harry Reid (D-Nev.) and former Director of African-American Advertising for the Hillary for America 2016 campaign. He is currently a vice president with MWWPR.