The Times has an interesting report exploring how the Democrats in the Senate came around to detonate the nuclear option, and eliminate the filibuster. What was the turning point? Decisions from the 5th and D.C. Circuits about abortion.
Within hours of each other, two federal appeals courts handed down separate decisions that affirmed sharp new limits on abortion and birth control. One on Oct. 31 forced abortion clinics across Texas to close. The other, on Nov. 1, compared contraception to “a grave moral wrong” and sided with businesses that refused to provide it in health care coverage.
“These are the kinds of decisions we are going to have to live with,” a blunt Senator Harry Reid, the Democratic majority leader, warned his caucus later as it weighed whether to make historic changes to Senate rules. Those changes would break a Republicanfilibuster of President Obama’s nominees and end the minority party’s ability to block a president’s choices to executive branch posts and federal courts except the Supreme Court.
The moment represented a turning point in what had been, until then, a cautious approach by Democrats to push back against Republicans who were preventing the White House from appointing liberal judges. All the more glaring, Democrats believed, was that they had allowed confirmation of the conservative judges now ruling in the abortion cases. Republicans were blocking any more appointments to the court of appeals in Washington, which issued the contraception decision.
Faced with the possibility that they might never be able to seat judges that they hoped would act as a counterweight to more conservative appointees confirmed when George W. Bush was president, all but three of the 55 members of the Senate Democratic caucus sided with Mr. Reid. The decision represented a recognition by Democrats that they had to risk a backlash in the Senate to head off what they saw as a far greater long-term threat to their priorities in the form of a judiciary tilted to the right.
“We put on three people — I don’t think they deserve to be on any court, but they — we put them on there, and they have been terrible,” Reid said. “They’re the ones that said … the president can’t have recess appointments which we’ve had since this country started. They’ve done a lot of bad things, so we’re focusing very intently on the D.C. Circuit. We need at least one more. There’s three vacancies, we need at least one more and that will switch the majority.”
We’ll see how effective this effort is to fill the vacancies, now that the filibuster is gone, and potentially, the Senate will remain in Democratic control for another year or so.
It is interesting how the proximity of these two abortion decisions triggered the nuke, and that two of the judges who voted “against” abortion were appointed in 2005 by the Democrats: Janice Rogers Brown and Priscilla Owen:
Very quickly and unexpectedly, abortion and contraceptive rights became the decisive factor in the filibuster fight. First there were the two coincidentally timed decisions out of Texas and Washington. Then momentum to change the rules reached a critical mass when Senator Barbara Boxer, Democrat of California and a defender of abortion rights, decided to put aside her misgivings, in large part because the recent court action was so alarming to her, Democrats said.
Mr. Reid and many members of his caucus found it especially disquieting that in 2005 they agreed to confirm the two judges who wrote the recent decisions — Janice Rogers Brown of the United States Court of Appeals for the District of Columbia Circuit andPriscilla R. Owen of the United States Court of Appeals for the Fifth Circuit — as part of a deal with Senate Republicans, who controlled the chamber at the time and were threatening to limit Democrats’ ability to filibuster judges if some of Mr. Bush’s nominees were not approved.
Aww, and this was such a sad jab at Ginsburg and Breyer.
Conservatives have always viewed the federal courts as a last line of defense in the country’s cultural and political fights. Among their base it is a central tenet that electing Republican presidents is vital precisely because they appoint right-leaning judges who will keep perceived liberal overreach in check.
The issue has never been as powerful for liberals. Consider, for example, how often Republican candidates laud Supreme Court justices like Antonin Scalia and Clarence Thomas compared with how relatively rarely Democrats mention liberal justices like Ruth Bader Ginsburg.
I laud you all the time RBG.