In the run up to the moment when GOP Majority Leader Mitch McConnell goes nuclear on the Senate filibuster, we've been treated to a constant stream of "both sides do it" false equivalencies from the media. If both sides are doing it now, let's be really clear about which side has done it more aggressively. It's not simply a matter of perspective—the numbers don't lie, writes David Leonhardt:
The failure rate of Democratic nominees to federal trial courts since 1981 has been almost twice as high as the Republican failure rate: 14 percent versus 7 percent. There is also a gap among appeals court nominees: 23 percent to 19 percent.
The gap between the parties would be even larger if Democrats hadn’t eliminated the filibuster on lower-court nominees in 2013, allowing Barack Obama finally to fill more judgeships. Even so, Trump has inherited a huge number of vacancies.
The numbers above (which I put together thanks to Russell Wheeler of the Brookings Institution) apply only to two-term presidents, to keep comparisons consistent. But the sole recent one-term president makes the point, too: In 1990, a Democratic Congress created dozens of new judgeships, even though George H. W. Bush could then fill many.
Can you imagine Republicans expanding the judiciary for a Democratic president?
No, we cannot. Anecdotally, Republicans are quick to blame Democrat Harry Reid for the 2013 filibuster change on lower-court nominees. But Republicans, led by master obstructionist Mitch McConnell, basically put a gun to Reid's head by blocking all but one of President Obama's nominees to the D.C. Circuit Court of Appeals. As Obama observed at the time:
“Four of my predecessor’s six nominees to the D.C. Circuit were confirmed. Four of my five nominees to this court have been obstructed.”
NPR national political correspondent Mara Liasson is one of the few journalists who accurately framed the disparity: "It is worth pointing out that although both sides have done this, the Republicans have done it more and more effectively."
When it comes to the filibuster, Republicans haven't been playing by the same rules as Democrats for decades. Now that Democrats wish to use the same filibuster rule the GOP so craftily deployed during the Obama administration, Republicans say they will actually change the rules in their favor again—never mind the fact that they never even gave Obama nominee Merrick Garland the courtesy of a vote or a hearing.
Democrats seem to finally realize that if you negotiate with hostage takers, it only emboldens them. After all, if the other side gets to dictate when you can and can't use the filibuster, then you never had a filibuster to begin with and you never will.