Cooper: The Supreme Court and how we got here

As a result of years of judicial chicanery by Democrats, President Donald Trump's Supreme Court pick, Neil Gorsuch, is likely to take his place on the high court Friday.
As a result of years of judicial chicanery by Democrats, President Donald Trump's Supreme Court pick, Neil Gorsuch, is likely to take his place on the high court Friday.

Senate Minority Leader Harry Reid, D-Nev., was smugly looking ahead to the presidency of Hillary Clinton last October and the possibility that Senate Republicans might dare to filibuster the new president's Supreme Court pick.

"[I]t's clear to me that if the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I've told 'em how and I've done it, not just talking about it," he told Talking Points Memo in an interview published that month. "I did it in changing the rules of the Senate. It'll have to be done again."

More than five months later, the filibuster is on the other foot.

Democrats, still steaming from Republican inaction on former President Barack Obama's high court nominee and flummoxed because Clinton was upset by President Donald Trump, have decided to block an up-or-down vote on Neil Gorsuch, Trump's highly qualified nominee for the court. It will be the first filibuster of a Supreme Court nominee in history.

Republicans, following Reid's lead in November 2013 when he changed Senate rules to allow a direct up-or down vote on presidential nominees other than Supreme Court justices (the so-called "nuclear option"), will in turn change the rules to allow such votes for high court nominees.

With the GOP holding a slim Senate majority, Gorsuch, in all likelihood, will take his seat on the Supreme Court on Friday.

Democrats will have reaped what they've sown - almost no matter where you pinpoint the start of the judicial gamesmanship.

The Washington Post, following Reid's 2013 rules change, noted "the vote was the culmination of more than 25 years of feuding over nominations, beginning with President Ronald Reagan's choices for the Supreme Court."

In 1987, Reagan, hated by Democrats because of his success and his popularity, nominated Robert Bork, an ideological but eminently qualified jurist for the high court. But then-Sen. Joe Biden, now the former vice president, led a fight to demean Bork's character and his opinions, which resulted in a rejection by the Senate Judiciary Committee and, ultimately, the Democrat-led Senate as a whole.

In 2005, another Republican president, George W. Bush, had been re-elected and had a slim Senate majority behind him. But Democrats didn't want to confirm his lower-court nominees, leading to the filibuster of a number of them and the first-ever filibuster of an appeals court nominee.

Republicans at the time talked of changing the Senate rules, as Reid did in 2013, but never did it. Reid, at the time, was indignant at such a thought.

"You should not be able to come in here and change willy-nilly a rule of the Senate," he said on the Senate floor. "What they are attempting to do in this instance is really too bad. It will change this body forever."

Even in 2008, the then-Senate majority leader defended the filibuster and could not imagine ever invoking the nuclear option.

"The Senate was set up to be different, that was the genius, the vision of our Founding Fathers. That's why you have the ability to filibuster, and to terminate filibuster. [Republicans in 2005] wanted to get rid of all of that," he told CSPAN.

"As long as I am the leader, the answer's no [to the nuclear option]. I think we should just forget that. That is a black chapter in the history of the Senate. I hope we never ever get to that again because I really do believe it will ruin our country."

Reid's "black chapter" was only five years away. When Republicans filibustered some of Obama's judicial picks in 2013, Reid and the Democrats changed the rules.

Then-Senate Minority Leader Mitch McConnell, R-Ky., warned them at the time: "I say to my friends on the other side of the aisle, you will regret this, and you may regret it at lot sooner than you think."

After Trump was elected, at least one Democrat, Delaware's Chris Coons, admitted it.

"I do regret that," he said in November. "We're instead going to have to depend on the American people, on thorough hearings and/or persuading" Republicans where someone "is just too extreme."

In Gorsuch, they didn't get someone extreme, but they did get a man who is expected to be a strict constructionist of the Constitution like the man he replaced, Antonin Scalia. And they got a man who, in hearings like every nominee by every president since Reagan, kept his opinions close to his vest in answering Judiciary Committee questions.

With what will occur later this week, you can say both parties have engaged in judicial gamesmanship, but it should never have started to begin with.

Any whining by Democrats about the result, Sen. Lindsay Graham, R-S.C., correctly said, sounds like "the arsonist complaining about the fire."

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