Schumer Surrenders

(AP Photo/J. Scott Applewhite)

Senate Minority Leader Chuck Schumer on August 21, 2018

Democrats were obviously focused on the departure of Barack Obama from the political scene in 2017. But the exit of another Democratic leader, Senator Harry Reid, while not quite as consequential as losing the presidency, has proven damaging.

A Senate leader is potentially the most powerful figure of an opposition party, something Mitch McConnell showed adeptly throughout the Obama presidency, as he constantly frustrated Democratic aims. But under Chuck Schumer, those oppositional tactics have withered, producing jaw-dropping spectacles like the one we saw this week: the active collaboration of Democrats in fast-tracking lifetime appointments to the federal bench.

Since passage of the 2017 tax law, the Senate has become little more than a confirmation factory for President Donald Trump’s appointees, and McConnell has badly outplayed Schumer in getting the job done. Sixty of Trump’s judicial nominations have been confirmed, more than those of any recent president. That includes 15 in the month of August alone, and seven at one time on Tuesday. It doesn’t include the eight additional ones scheduled for next week.

Since changes made by Reid’s Democratic majority in November 2013, judges only require a majority vote for confirmation in the Senate. Yet Reid was only able to get 14 Obama-nominated judges through the chamber in the year-plus before Democrats lost the majority; McConnell confirmed more than that just in August.

McConnell had a great insight as minority leader: There’s a finite amount of Senate floor time, and any one senator, regardless of party, can limit that floor time even more if he or she is willing to press the issue. Confirming Obama-appointed judges, even those who eventually got a unanimous vote, took long stretches of floor time, with Reid having to get a recorded vote twice, and burn off 30 hours of debate in between. This task competed with other executive branch nominees and legislation, some of it must-pass, forcing Reid to make tough choices on what votes to prioritize.

It’s true that McConnell has carried over that tactical skill to the majority, canceling the month-long August recess and imposing some politically tough votes on the ten Senate Democrats running for re-election in states Trump won in 2016, who would rather be home campaigning. But Schumer has simply been far more accommodating in the minority than his Republican counterpart was—and is.

For example, under this week’s McConnell-Schumer deal, the Senate mass-confirmed seven judges Tuesday and scheduled eight for next week. In exchange, Democrats appeared to get this: a couple of the judges who were former Obama appointees, the re-nomination of Mark Pearce to a Democratic seat on the National Labor Relations Board, and the release of 85,000 documents from Brett Kavanaugh in advance of his Supreme Court confirmation hearings.

Democrats were already entitled to much of this: They had filed a Freedom of Information Act request for the Kavanaugh documents, and a re-nomination for the NLRB seat doesn’t guarantee a successful vote. Trading a couple of middle-of-the-road Obama judges for more than a dozen hardline Trump ones—including one rated “unqualified” by the American Bar Association—doesn’t make this much better.

If Schumer instead took the methodical approach that McConnell once employed, as former Reid staffer Adam Jentleson explained, making McConnell produce votes twice and using all debate time in between, it’s unlikely that all 15 judges would be confirmed between now and the end of the year. A determined majority can eventually confirm an individual judge, but between midterm elections, holidays, and many Republicans off to John McCain’s funeral—the real reason for yesterday’s deal—there just isn’t a lot of Senate floor time available. The result would be fewer of Trump’s judges getting confirmed. The power they will wield once they’re on the bench will be vastly more consequential than Schumer’s one-sided display of collegiality.

Before you suggest that the red-state Democrats needed to leave Washington to campaign, Schumer could have let them all go home and still pulled this off. Jentleson points out that you merely need one Democrat on the Senate floor at all times to object to fast-tracking nominations. The Senate operates entirely on unanimous consent of all members. A rotating cast of individual Democrats scrolling through their smartphones and saying “I object” at opportune moments is all that’s needed to grind the Senate to a halt. McConnell ought to know; it’s what he often did.

And, alas, there’s more. Schumer also botched a Securities and Exchange Commission nomination, with consequences perhaps even worse than his judicial lapses. By law, federal regulatory commissions with a five-member board can contain no more than three members from the president’s party. The opposite-party leader in the Senate—in this case, Schumer—has wide discretion to recommend minority-party commission members, whom the president then nominates. Uncharacteristically, Trump has actually kept to this norm: Several Schumer recommendations have been confirmed.

For some time, it’s been clear that two seats were opening up on the securities regulator: a Republican seat vacated by Michael Piwowar, and a Democratic seat that progressive Kara Stein must give up by the end of the year. Within a few weeks of Piwowar’s announcement, Republicans had ready a replacement: Elad Roisman, chief counsel to Senate Banking Committee Chair Mike Crapo, an Idaho Republian. This has become a trend for Republicans, setting far-right Senate staffers loose on the regulatory state. But a Democratic nominee has yet to emerge.

After some intra-party squabbling, Schumer belatedly sent up a name, and a good one: Allison Lee, an SEC attorney who worked with Stein. But Lee has not yet been formally nominated. Meanwhile, as part of Tuesday’s deal, McConnell filed cloture on Roisman, whose nomination had already advanced through the Banking Committee.

Schumer’s delay in recommending Lee could have major consequences. Traditionally, Democratic and Republican slots on regulatory commissioners are paired, so senators of each party have a reason to vote for them. But Lee has now been left hanging. Roisman will likely join the SEC next week, and the Democratic nominee will languish, with Republicans under no pressure to confirm her now that they’ve filled all the Republican vacancies. Even if Democrats win back the Senate in 2019, Trump would have to re-nominate Lee, without much motivation to do so. Because of Schumer’s delay, the SEC could end up with a 3-to-1 Republican-Democratic split for months, or even years.

None of this has anything to do with how liberal Schumer or his caucus either is or isn’t. It’s all about tactics. In the minority, McConnell made life miserable for Senate Democrats, minimizing their output. Schumer has simply not stepped up with the same aggression. As a result, McConnell has been able to outmaneuver his counterpart repeatedly, with wide-ranging consequences for all Americans.

Where have you gone, Harry Reid? Our nation turns its lonely eyes to you.

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