Who Broke Washington? Blame Harry Reid

No question: Republicans use and abuse of the filibuster is unprecedented. But they got the idea from the Senate Democratic leader. 
Rick Wilking/Reuters

Let's not have any false equivalence. This shutdown is Republican-led or, more accurately, led by a faction of Republicans. The Peter Kings and John McCains didn't want to link Obamacare to a continuing resolution to fund the government. House conservatives did.

That doesn't mean, however, that Democrats are entirely blameless. Part of the foundation for today's paralyzed Congress came during the George W. Bush years, and it involved Harry Reid, now the Senate majority leader. In today's Washington, Reid and Senate Democrats are apoplectic not only about the shutdown but about the unprecedented use of the filibuster being deployed by the Republican minority. (See the statistics here on the incredible surge in filibuster use.) But back in 2003-05, Senate Democrats were in the minority, and they used the filibuster in ways that presaged and created a path for the Republican extremism. Comparing Reid's filibuster policies when the Democrats were in the minority to the current obstructionism of Mitch McConnell, is comparing playing with matches to being an arsonist. But arsonists start by playing with matches, and it's worth looking at how Reid took the filibuster, once a break-glass-in-case-of-emergency tool and used it freely in helping to build the culture of confrontation we have now.

After the 2002 elections, Democrats lost their Senate majority and were eager to use whatever tools they could to stymie Bush's conservative judicial nominations. Famously, since the nomination of Robert Bork to the Supreme Court in 1987, senators had been assessing a nominee's ideology rather than their academic qualifications. But in the years afterward, senators became less and less hesitant about using the body's myriad delay tactics to stall nominations from even getting a vote. (Bork, at the very least, got one and lost.) By the time of Bill Clinton's presidency, Republicans had no compunction about bottling up any number of judicial nominations, especially as his term came to an end using only-in-the-Senate tools like holds. This included Clinton's nominee, Elena Kagan, who never made it to the D.C. Circuit Court of Appeals, because her nomination was never given a hearing in the Judiciary Committee then chaired by Republican Orrin Hatch.

When Democrats returned to the minority in 2003, Reid, then the minority whip, took out a cannon when before only pistols had been used to shoot down nominations. Democrats employed the filibuster as a weapon of choice. "If it all began with Robert Bork. No doubt the intensity of judicial nominees heated up at that time — and now the Republicans have taken to extreme and it's filibusters on steroids," says a top Democratic staffer from that time, recalling the road to chaos.

Granted, Reid's tactic was not the first time the filibuster had been used to scuttle a judicial nomination. It happened in the 19th century, and it also took place in 1968 when Lyndon Johnson tried to elevate Associate Justice Abe Fortas to be chief justice. (Fortas eventually resigned from the Court over ethics issues.) But Reid embraced the filibuster as the chief tactic in undermining judicial nominations. Norm Ornstein, known as a nonpartisan congressional scholar, has gotten attention for a new book, It's Even Worse Than It Looks, that lays most of the blame for Washington's current gridlock squarely on Republican extremism. Still, Ornstein calls the Democratic judicial filibusters of the previous decade distasteful. "It was a bad moment that routinized filibusters," he says.

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Matthew Cooper is a managing editor (White House) for National Journal.

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