Today former Senate Leader Harry Reid passed away. Our condolences to his family, and we recognize his lasting impact on the Senate.
Harry Reid's legacy lives on. The most long-lasting part of his legacy may be the changing of the Senate filibuster in a fit of pique over DC Circuit judicial nominees. Ironically, part of the reason for the Republican effort to block DC Circuit nominees was a nonpartisan belief that the DC Circuit does not need as many judges. Republican Judiciary Committee leader Senator Charles Grassley was advocating reducing the number of judges on the DC Circuit, as the caseload did not justify it size. He did this under Republican and Democrat Presidents. Senate Leader Harry Reid changed the rules on a partisan vote to nuke the filibuster in a fit of partisan rage. Republican Leader Mitch McConnell stated at the time:
McConnell was quick to criticize Reid’s plan, accusing Democrats of trying to divert attention from the embattled health care law that has been a drag on the party. McConnell said Democrats were cooking up a “fake fight over judges that aren’t even needed.”
“You’ll regret this and you might regret it even sooner than you might think,” McConnell warned.
That regret came back to haunt the Democrats in 2016, when Justice Scalia died, and in 2017 when Senator Schumer, on a purely partisan filibuster, attempted to block Justice Gorsuch. Following Reid's precedent on judges, Republicans changed the rules, and because of Senator Reid we have Justice Gorsuch today. If Reid had never nuked the filibuster on judges, Justice Gorsuch could have been filibustered, and Justice Brett Kavanaugh certainly would have been.
And it looks like Senator Schumer has not learned from Harry Reid's example. In a "dear colleague" letter released last week, Senator Schumer indicated that he will be pursuing changes to the filibuster if he doesn't have the votes to overcome it—which will most likely be the case. The New York Times reported:
In a letter to colleagues, Mr. Schumer, the New York Democrat and majority leader, said that the Senate would take up stalled voting rights legislation as early as the first week of January and that if Republicans continued to filibuster, the Senate would “consider changes to any rules which prevent us from debating and reaching final conclusion on important legislation.”
The article continued:
Democrats knowledgeable about the internal deliberations say that many possible changes are under consideration, including weakening the filibuster against the preliminary “motion to proceed” to bring legislation to the floor for consideration. But in a more significant move, Democrats say they are also discussing a change that would clear the way for final action on a bill through a simple majority vote after guaranteeing opponents the opportunity to alter the legislation through a significant number of amendments.
Instituting such a change would require the support of all 50 Democrats and the vote of Vice President Kamala Harris presiding to break a tie in the 50-50 Senate.
Democrats say such a filibuster “carve out” would apply only to issues grounded in constitutional rights such as voting, but Republicans and others say it would inevitably be extended to other legislation, diminishing the overall power of the filibuster.
President Joe Biden says he supports a filibuster "carve out" for voting rights legislation.
PSAKI: Biden "is prepared to support changes [to the filibuster] if that's the only thing standing in the way of getting [voting rights legislation] done." pic.twitter.com/A2R9Iun6BI— Townhall.com (@townhallcom) December 23, 2021
If Schumer follows through with weakening or getting rid of the filibuster all together, Democrats will inevitably be hurt in the 2022 midterms:
"If Schumer continues down this path… I think we'll send him a gift basket or something," National Republican Senatorial Committee (NRSC) spokesman Chris Hartline told Fox News. . .
[T]hat vote would force vulnerable Democratic senators running for reelection like Sens. Catherine Cortez Masto, D-Nev., Mark Kelly, D-Ariz., and Maggie Hassan, D-N.H., and to cast an affirmative vote about changing Senate procedures to advance Democrats' agenda items.
"[They all] would vote how Schumer wants them to vote," Hartline predicted. "Every single Democrat three years [ago] signed onto a letter defending the filibuster when there was a Republican president and a Republican majority in the Senate… So, I mean, they're all hypocrites."
The last time the Democrats nuked the rules under then Senate Majority Leader Harry Reid, they ended up with Justice Gorsuch. While Senator Schumer may have forgotten Reid's legacy, it seems unlikely that all the other 99 Senators have.