There’s an old gag about slips of the tongue. I’ll tell it from the female point of view for purposes of domestic tranquility: A woman means to ask her husband to please take out the trash; instead she blurts out, "you ruined my life; I should have married Steve!"
Dr. Freud smiles on such couples. "Lie back," he says, "tell us where it all began..."
So it is with Congress today, with the Senate to be more precise. From where did all this hostility derive?
A good place to start is the Reagan administration, though one could drill deeper depending on one’s political perspective. Conservatives had become alarmed at jurists legislating from the bench, as they saw it. Reagan countered by nominating strict constructionists to federal court positions. Democrats, who had used the courts to advance civil rights, resisted, slowing the Senate confirmation process to a crawl or rejecting nominees by threat of filibuster.
In those days, judicial appointments required 60 votes under Senate cloture rules, but affirmation votes were mostly proforma. Democrats had every right to slow or strangle appointments using the tools at their disposal, but it was considered a jerky thing to do if you asked Republicans at the time.
Things really got hot when Supreme Court Justice Lewis Powell announced his retirement in 1987. Reagan nominated conservative Court of Appeals Justice Robert Bork for the position. Democrats attacked the nominee, and the nomination went down. The process was so ugly that the Oxford English Dictionary added the verb "bork" to the lexicon after the confirmation vote. To "bork" is "to obstruct (someone, especially a candidate for public office) through systematic defamation or vilification."
Fast forward to the Obama administration. Now the shoe was on the other foot, and Republicans used every parliamentary trick to obstruct judicial nominees they saw as liberal. Things came to a head in 2013 over three Obama picks for the U.S. Court of Appeals for the District of Columbia Circuit. Republicans wouldn’t budge, and then-Democratic Senate Majority Leader Harry Reid suspended the filibuster rule for judicial nominees, the long-threatened "nuclear option." A simple 51-vote majority would be all that’s needed to confirm nominees.
Republicans, then-Senate Minority Leader Mitch McConnell especially, were aghast. The filibuster, they argued, is a sacred gentlemen’s agreement to safeguard minority rights in the Senate. Reid’s suspension of it was a declaration of war.
In March 2016, the war expanded. President Obama nominated Judge Merrick Garland to the Supreme Court after the death of iconic conservative Justice Antonin Scalia. It was now Senate Majority Leader McConnell’s turn to break with protocol. He did so by refusing to hold hearings on Garland, disingenuously arguing that the nomination was too close to the 2016 presidential election. Democrats were aghast.
Which brings us to today: With the death of iconic liberal Justice Ruth Bader Ginsburg, McConnell has predictably changed his mind. McConnell plans to push through President Donald Trump’s Supreme Court nominee weeks before the 2020 election with a simple-majority vote.
Make no mistake about it: McConnell has every right to do so, but it would be a jerky thing to do, so jerky, in fact, that Senate Minority Leader Chuck Schumer is threatening to one-up McConnell in jerkiness should he become Senate majority leader in January. "Nothing would be off the table," Schumer is saying, implying that he’d suspend the filibuster for all Senate proceedings and expand the number of seats on the Supreme Court to erase any conservative advantage. The country might never be the same after that.
If I had Schumer and McConnell on my couch, this would by my prescription: allow a confirmation vote to occur pre-election — with the 60-vote cloture vote rule restored. In exchange, agree to keep the filibuster in place in perpetuity.
We need to back up to move forward. Otherwise we’re looking at divorce, an unthinkable proposition.
William F.B. O'Reilly is a consultant to Republicans.