Getty Images In The Arena McConnell Is Finishing What Schumer Started Fifteen years ago, Chuck Schumer picked a fight over judicial nominees. This week, Mitch McConnell is ending it for good.

Josh Holmes is president and founding partner of Cavalry, LLC and is the former chief of staff to Senator Mitch McConnell.

In a world of instant gratification that too often rewards boastful rhetoric over definitive accomplishments, Mitch McConnell stands out for his patience. The Senate majority leader expends political capital with ruthless efficiency, using it only when it can accomplish precisely what he intends. McConnell doesn’t start many fights; he finishes them.

As the Senate moves toward confirmation of Neil Gorsuch, President Donald Trump’s nominee for the Supreme Court, that is exactly what is happening: McConnell is ending a fight that a young senator named Chuck Schumer started nearly 15 years ago by rallying the first-ever partisan filibuster of a nominee to the D.C. Circuit Court: Miguel Estrada. Previously, the Senate’s “advise and consent” role was vigorously deployed with fierce partisan tensions but ultimately settled with simple up-or-down majority votes.


Fresh off a drubbing in the 2002 midterm elections, Schumer and a Democratic minority sought to invigorate their liberal base by changing all of that. Leaked internal memos indicated that the Democratic opposition was predicated on the fact that if confirmed, this brilliant young Hispanic conservative would be catapulted onto the short list for a Supreme Court nomination. On that assumption, they were likely correct. At the time, Schumer understood that he could not base opposition to a judicial nominee on politics alone, so the stated reason for his opposition relied on the thinnest of gruel. Despite earning a “well-qualified” rating from the American Bar Association—the legal gold standard and seal of approval—Senate Democrats argued he wasn’t qualified.

As a young legislative correspondent at the time, I staffed my then-boss, Minnesota freshman Republican Senator Norm Coleman, as he drew the much-despised overnight shift on the Senate floor to protest the Democratic blockade of Estrada. The hope was that after loud protests, moderate Democrats would defuse the escalation before judicial nominations became trench warfare. Alas, despite 55 senators voting to end the blockade, Democrats sustained the filibuster—as they would with Estrada on an additional six separate occasions. He was forced to withdraw his nomination, and a new age of partisan filibuster was born. Within two years, Schumer’s tactic would be deployed to torpedo nine more of President George W. Bush’s nominees.

Predictably, the misuse of the filibuster led to an existential threat to the filibuster itself. To confirm President Bush’s embattled judicial nominees, then-Majority Leader Bill Frist threatened the “nuclear option,” that is, changing Senate rules to ban the use of the filibuster in certain instances. A bipartisan group of senators known as the “gang of 14” de-escalated the situation by voting to confirm most of the filibustered nominees, staving off such a fundamental change to Senate procedure.

In politics, as in life, what comes around goes around. In 2009, Democrats regained control of the White House and the Senate, and as Senate Republicans blocked Obama’s judicial and executive-branch nominees, Democrats quickly grew frustrated with the new era of partisan warfare they had begun under Bush. In November 2013, Senate Majority Leader Harry Reid detonated a partial version of the nuclear option, eliminating the filibuster for appointments to the executive branch and lower courts, while exempting Supreme Court nominees from the new simple majority-vote standard.

As a staffer for McConnell from 2007–2013, I watched him repeatedly warn colleagues on both sides of the aisle not to stray onto an irreversible path of escalation. He disappointed conservative activists when he chose not to filibuster the nominations of justices Sonia Sotomayor and Elena Kagan. He privately and publicly counseled Reid that invoking the nuclear option would bring profound unintended consequences to the Democratic interests that Reid sought to satisfy.

When Reid invoked the partial-nuclear option, nobody could have known when retribution would come. But anyone who has ever followed McConnell’s career should have understood that it would come eventually. McConnell, whose memoir is fittingly titled “The Long Game,” would wait more than three years before moving to end the judicial war once and for all.



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When Justice Antonin Scalia died in February 2016, the conservative legal world lost its North Star. For decades, Scalia held the pen for our convictions. As Republicans wept his passing, McConnell quickly sought to ensure his replacement would not fundamentally alter the balance of the court for generations.

Within hours of Scalia’s death, McConnell announced that the court vacancy should be filled by the winner of the presidential election rather than a lame-duck president in his last year in office. For eight long months, McConnell was the target of liberal attacks, editorial scorn and centrist hand-wringing. He shouldered the political burden while seeking a commitment from then-candidate Trump that he would publicly release a list of judges he would consider nominating to the court if given the opportunity. McConnell then went about convincing the large number of Senate Republicans who were up for reelection in 2016 that this issue would help, not hurt, their election chances by motivating conservatives to turn out.

As we know, Senate Republicans held together. President Obama’s nominee, Merrick Garland, never received consideration by the Senate. Trump won the election, and fulfilled his commitment to McConnell by nominating the very finest name on his Supreme Court list to fill the Scalia vacancy: Judge Neil Gorsuch.

In the most ironic plot twist, the man who started it all returns to the stage in the final scene. Now the Senate minority leader, Schumer has once again set a new precedent by rallying a freshly defeated Democratic minority to attempt the first-ever partisan filibuster of a Supreme Court nominee.

Nearly 15 years after Schumer started this fight, he will have a front-row seat when McConnell finishes it. A uniquely perfect way for this story to end. Regrettable, perhaps; inevitable, to be sure.