Since we’re all about gangs this week, please step into my TED talk about how the Gang of 14 was one of Democrats’ worst strategic mistakes of the past few decades.

The year is 2005. Republicans really, really want to go nuclear to confirm Bush’s judges. Like, really want to.
Bush, Cheney and Frist were all eager to go nuclear. The floor general for the fight was a young comer named Addison Mitch McConnell. In May, on the Senate floor, McConnell announced that the “Senate is prepared to restore the Senate’s traditions and precedents,” and go nuclear.
To lay the intellectual groundwork for the effort, former Baker counsel and all-around Senate guru Martin Gold penned a law review article dubbing it the “constitutional option.” It’s good! Makes a strong case the Framers would’ve opposed the filibuster 😊…
Sorry I started that thread in a Lyft then got to where I was going 😂 ANYWAY, let’s continue
At issue were the nominations of a bunch of hyper-conservative Bush judicial nominees, like William Pryor and Janice Rogers Brown. Dems were using the filibuster to block them. If at this point you think to yourself, “huh they’re on the bench today,” you know where this is going.
Into this space stepped the Gang of 14. No one wanted what they were selling - not Republican leaders, not Democratic leaders. They garnered a ton of attention for themselves and were seen as the great saviors of the Senate. But all they did was delay nature taking its course.
The famed Gang of 14 struck a very stupid deal, whereby Dems retained their right to filibuster, but were only allowed to use it under “extraordinary circumstances.” Dems were very conscientious in how they applied this standard, and Rs basically convinced them no one met it.
Most of the controversial Bush nominees at the heart of the controversy got confirmed, all with fewer than 60 votes. In other words, Bush got most of the judges that he threatened to go nuclear over, without having to go nuclear.

But wait, there’s more…
As I said upthread, all the leaders hated the deal. Reid gave a speech saying Dems already *were* using the “extraordinary circumstances” standard, to no avail. For their part, the Bush WH wasn’t satisfied getting only the judges covered by the deal. They wanted to keep pressing.
The Bush WH sought to put forward judicial nominees who would test the boundaries of the deal, force Democrats to filibuster, and give Republicans an excuse to go nuclear - like they had wanted to do all along. (H/t @hillhulse, read his book on this).
One of the nominees the Bush WH put forward to test the Gang of 14 deal - to see if Democrats would filibuster, and in so doing, give Republicans the excuse to go nuclear they wanted - was a former aide to Ken Starr whose earlier nomination had been blocked by a filibuster…
His name was Brett Kavanaugh.
Deeming that Kavanaugh didn’t meet the “extraordinary circumstances” standard & boxed in by Republicans’ nuclear threat, Dems did not filibuster Kavanaugh and let him be confirmed to the DC Circuit with fewer than 60 votes. As Ashley notes, this laundered much of his record.
Two other nominees did not meet the GO14 “extraordinary circumstances” standard and were therefore not filibustered: John Roberts and, more controversially, Samuel Alito. Roberts probably would’ve been confirmed no matter what, but Alito was confirmed with fewer than 60 votes.
So what did Democrats get out of this Gang of 14 deal, that is remembered so gauzily, perhaps with the “West Wing” theme song playing in the background?

Jack shit.

What did Republicans get? Pretty much all the judicial nominees they wanted.

Republicans also got to preserve the filibuster, which Dems had fallen over themselves to enshrine. When Obama won, instead of being able to confirm whomever he wanted on a majority vote because Rs had gone nuclear under Bush, he had to slog for 5 years to get his noms confirmed.
Did Dems realize they’d been played, and quickly go nuclear themselves? Of course not! It took them 5 years to do it, causing Obama to bleed enormous political capital over that time. My friend Cassandra Butts died while waiting 820 days to be confirmed.…
If Dems had just let Republicans go nuclear, Rs would have gotten the same crop of judicial confirmations, and Obama could’ve nominated whomever he wanted to be confirmed with just a majority, in a Senate where he had 60(ish) Dems. This would’ve been a very different dynamic.
Then there’s Garland. How would his nomination have played out differently if Dems had only needed 50 votes to confirm him, in a Senate where they held 46 seats? McConnell made a snap decision to block him because he knew he could hold 14 of his members. But 4? Maybe… but idk.
Coda: after leading the fight to go nuclear in 2005, then flipping 180 degrees under Obama to claim going nuclear would break the Senate, McConnell promptly went nuclear when it served his interests to confirm Gorsuch to the seat he blocked Garland from filling…
Meanwhile, having used his time on the DC circuit (to which he was confirmed as a result of the GO14 deal) to distance himself from his past as a political hatchet man, we also got this guy.
One thing to add: very much a hypothetical, but if Republicans had gone nuclear under Bush, it is *much* easier to see Dems seriously considering going nuclear on legislation under Obama, and perhaps even doing it. The dynamic would've been very different.
I forgot an important point.

Under Obama, did the remaining Republican members of the Gang of 14 reciprocate - did they apply the “extraordinary circumstances” standard as conscientiously as Dems had under Bush, and help confirm key Obama nominees?

Haha, of course not!
Anyhoo, this is why when my fellow, well-meaning Dems ask me if I regret the 2013 nuclear decision, the light drains out of my eyes and I stare into the middle distance.

Literally my only regret is that we did not do it *immediately.*

Dems risk making the same mistake now.
What's the lesson? Dems often have a strong Vizzini-with-the-cups vibe when faced with these kinds of strategic choices. Rs made clear they were going to get their noms, at the cost of nuking the filibuster. Fair enough. When you win, you get what you want, at a cost. Instead...
Dems thought they'd outsmarted Rs, preserving the filibuster. Except they did so on terms that meant they couldn't use it when it mattered, by dint of their own generous application of the "extraordinary circumstances" standard, and the fact that Rs really were ready to go nuke.
Rather than extract a cost from Rs by making them go nuclear - which would hurt, but benefit Dems in the future - they gave Rs everything they wanted AND let them keep the filibuster to use against future Dems. "Never go up against a Sicilian...!" they cried, before keeling over.
The Bush administration and Senate Rs had made the calculation that nuking the filibuster was a price they were perfectly willing to pay to secure their priorities. I can only imagine how giddy they were that Dems gave them what they wanted without forcing them to incur any cost.
Today, some Dems still believe we can have it both ways - get what we want without incurring whatever cost comes from nuking the filibuster. This is Vizzini logic from the other end.

It is worth the cost. Rs knew it in 2005, and they will know it the next time they're in power.
People often ask me what made Reid good at what he did. While Reid is certainly not perfect in all of this, as I alluded to above, he hated the G014 deal and tried to scuttle it. And then he tried to keep the filibuster going against Alito, but couldn't sustain it. But anyway...
Reid was a boxer (cue @RalstonReports). He knew you always have to take a punch to land a punch. Trying to avoid getting punched is silly - that's not the sport, and it's a guaranteed way to lose. You're going to absorb blows. The only question is, can you make yours land harder.
Do as much as we can while in power. Don't be Vizzini - don't think we're being savvy by leaving the filibuster in place. Rs will nuke it as soon as it serves their interests and pass the bad stuff we fear anyway. (Let me save you time, all takes about why they won't are wrong.)
Otherwise, someone will write a thread like this ten years from now about how poorly the decision to leave the filibuster intact played out for Dems.

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More from @AJentleson

10 Jun
Wait I thought there were all these senators hiding behind Manchin and Sinema
Another shrinking violet, hiding behind Manchin and Sinema smh
Another one! All these senators trying to play it coy by [checks notes] reaching out to the reporter after the interview to be 100% clear that she does, in fact, support reform
Read 6 tweets
10 Jun
Sinema went from Green Party candidate to a curiously enthusiastic defender of the filibuster based on what is, at best, a rough and deeply flawed grasp of Senate history and procedure. In the process, she appears perfectly willing to throw Arizona Democrats under the bus.
There’s two options at this point: either Sinema has some insight that eludes everyone else, or she’s playing politics worse than any senator in recent memory. Manchin is from a state Trump won by 30+. She’s from a state Biden won - and where credible primary challengers exist.
Maybe, but that would probably be a mistake. With her voting record she can’t win a GOP primary in AZ for dogcatcher. Nor is she at all likely to win statewide as an independent - she doesn’t have anything g close to the stature or name ID. It’s a very curious case.
Read 4 tweets
6 May
The Senate was designed to give the minority input, but the Framers rejected a supermajority threshold because it gives the minority a veto. Madison wanted the minority to have a voice, Calhoun wanted a veto. Manchin is defending Calhoun's vision of the Senate, not Madison's.
Madison called majority rule the “republican principle” and said that a supermajority threshold would cause “the fundamental principle of free government to be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.”
Hamilton said that while you may think a supermajority threshold promotes compromise “what at first sight may seem a remedy, is, in reality, a poison.” The “real operation” of a supermajority threshold is to “embarrass the administration, to destroy the energy of the government.”
Read 4 tweets
24 Mar
This is one of my favorite parts of the book: in 1957, Nixon teamed up with leading Senate liberals like Hubert Humphrey to try to nuke the filibuster to pass Eisenhower's strong civil rights bill. LBJ helped Russell & the white supremacist southern bloc defeat them. Then...
With the filibuster untouched, LBJ spent the summer of 1957 gutting Eisenhower's strong civil rights bill, making it so toothless that it was acceptable to Russell and the segregationists, who dropped their threat of a filibuster and let it pass. Of course...
Strom Thurmond waged his famous 24-hour filibuster against the 1957 bill. But he waited until LBJ had defanged it & until the rest of the southern bloc had signaled they wouldn't filibuster it. Thurmond's fellow white supremacist senators were furious at him for showing them up..
Read 8 tweets
23 Mar
It's quite literally a Jim Crow relic. The filibuster as we know it today, with the ability to impose a de facto supermajority threshold, was forged by self-avowed white supremacist senators during the Jim Crow era, for the express purpose of blocking civil rights bills.
When I say self-avowed white supremacists, I mean that literally, too. Here's Sen. Richard Russell, the chief practitioner, defender & innovator of the filibuster from the 1930s-1960s: "any southern white man worth a pinch of salt would give his all to maintain white supremacy.”
Or perhaps Senator Sasse would prefer to explain Senator Theodore Bilbo of Mississippi, another leading practitioner of the filibuster during the Jim Crow era and author of the book, "Take Your Choice: Separation or Mongrelization."
Read 5 tweets
12 Mar
Dems should pay close attention to the elation they're feeling after passing the ARP combined with the off-balance defensiveness Republicans are showing. We should draw these threads together and ask: what happens if we just keep passing popular policies on a majority-vote basis?
One thing that might happen is, voters will start associating Dems with popular policies. Instead of explaining that we passed some muddle of a bill because we had to sacrifice good policy to secure a laughably small number of GOP votes, we can say we passed the popular thing!
Another thing that might happen is that some Rs might tire of being on the wrong side of very popular things. It's one thing when McConnell holds everyone together to defeat a big bill - that's a net gain for Rs. But what's the gain from voting against a bill that polls at 75%?
Read 5 tweets

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