Why does it matter so much to rule-of-law conservatives that Republican Sens. David Perdue and Kelly Loeffler win their Jan. 5 runoffs in Georgia? Because control of the Senate depends on either Perdue or Loeffler beating Jon Ossoff or Raphael Warnock, their respective Democratic opponents. (Both would be better, as that would mean a 52-to-48 GOP majority.)
If Perdue or Loeffler wins, Senate Majority Leader Mitch McConnell (R-Ky.) keeps his job. If Ossoff and Warnock both win, Senate Minority Leader Chuck Schumer (D-N.Y.) becomes the majority leader.
Liberals and leftists must have been chagrined by Schumer’s all-too-revealing exultation as he recently celebrated Joe Biden’s election victory: “Now we take Georgia, then we change America!” If Schumer wins Senate control, he can indeed change America by beginning the undoing of the capstone achievement of McConnell’s steady, disciplined six years as majority leader: confirmation of three Supreme Court justices and 53 appeals court judges.
Majority Leader Harry Reid (D-Nev.) in 2013 destroyed the filibuster as a check on radicalism on the judiciary. Under the pre-Reid rules, judicial nominees needed 60 votes to be confirmed. That threshold was abused by Democrats for years.
Reid and ranking member of the Judiciary Committee Pat Leahy (D-Vt.) went into full opposition mode. The obstruction became a blockade.
When Republicans took Senate control in January 2003, Leahy and Reid were back in the minority and used the old filibuster to keep many superb nominees from confirmation, including William Pryor, Miguel Estrada and Carolyn Kuhl. The obstruction became so absurd that Senate Majority Leader Bill Frist (R-Tenn.) threatened to use the “nuclear option”—a change of the Senate’s rules to simple majority confirmation.
Frist did not have to use that option because center-left Democrats led by Sen. Ben Nelson of Nebraska teamed up with institutionalist Republican senators, led by John McCain of Arizona, to craft the Gang of 14 agreement. It sacrificed some fine choices but broke the blockade on Pryor and other first-rate nominees, while sacrificing some, including Estrada and Kuhl.
When Republicans blocked many of President Barack Obama’s judicial nominees, Reid actually used the nuclear option that Frist had only threatened to employ. The Reid Rule of 2013, allowing a simple majority vote to change the rules of the Senate, forever altered the institution.
The filibuster was ended for all nominees save those for the Supreme Court (an exception that McConnell subsequently ended, as he refused to allow Democrats to manipulate the rules to their benefit but not to the benefit of the GOP).
If Republicans continue to hold the Senate, it isn’t clear whether Biden would face, from McConnell, the sort of blockading that Reid practiced. Certainly nothing McConnell did would be unprecedented, thanks to Reid.
But you can count on this: If Perdue and Loeffler lose the Georgia runoffs, and Schumer takes charge of the Senate, the federal judiciary will begin a leftward lurch with each Biden nominee confirmed by a simple majority. If Perdue or Loeffler wins, Biden will be more inclined to nominate moderate jurist.
In other words, if Mitch McConnell remains majority leader, radical lawyers need not apply for lifetime appointments in robes.