Reid and the Federal Judiciary

I mentioned this morning that Harry Reid could well be remembered as the man who finally reversed the arrows on what had become a suffocating expansion of the filibuster. At the New Yorker, Jeffrey Toobin explains what that meant in practice:

When Barack Obama took office, in 2009, he had a long agenda—mending a collapsing economy, transforming health care, and ending two wars, to name just the top items. Nominating judges to the federal judiciary was low on the list. The President filled two quick vacancies on the Supreme Court with Sonia Sotomayor and Elena Kagan. As for the dozens of vacancies on the federal circuit and district courts, Obama’s attention was fleeting. He didn’t even submit nominees to fill many judicial vacancies, including on the D.C. Circuit, which is generally regarded as the second most important court in the country….

When Republicans took control of the House of Representatives after the 2010 elections, the President’s chances for pushing through meaningful legislation vanished. But the Senate, which is responsible for confirming judges, remained in Democratic hands—and in 2013, Reid took charge of the issue. The Senate had confirmed only five Obama appointees to the federal appeals court in the election year of 2012, but Reid moved to double the pace in 2013. Republicans responded by filibustering almost every judicial appointment to the appeals court and slow-walking appointments to the district court, which had been routine and uncontroversial under earlier Presidents. Reid fought back, and kept pushing the President’s nominees. In time, though, Reid came to a crossroads.

Reid had fifty-five Democrats in the Senate—enough for a majority but not enough to beat back Republican filibusters. So, in December, 2013, Reid invoked what became known as the nuclear option. With Reid’s blessing, Senate Democrats changed the rules so that only a majority would be required to move lower-court judgeships to a vote. Freed from the threat of filibusters, Reid pushed through thirteen appeals-court judges in 2013 and 2014, a group of exceptional quality. They included Patricia Millett, Nina Pillard, and Robert Wilkins on the D.C. Circuit. For the first time in decades, that court now has a majority of Democratic appointees. Other confirmations included such luminaries as Pamela Harris (a noted professor and advocate) on the Fourth Circuit, Jill Pryor (a career public defender) on the Eleventh, and David Barron (a Harvard law professor and Obama Administration lawyer) on the First. None received more than sixty votes, meaning that they would not have been confirmed had Reid not changed the rules. In future decades, many of these judges will be candidates for promotion if a Democratic President has a Supreme Court vacancy to fill. At the same time, Reid pushed through more than a hundred district-court judges in his last two years as majority leader. Of course, almost all of these judges will serve long after Barack Obama and Harry Reid have left office.

That Reid, a big-time Senate traditionalist, let himself be convinced this harvest of judges was worth the trouble and controversy of changing the rules on filibusters was a sign he understood his particular challenge and met it.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.