How Harry Reid Changed the Rules
When he was a kid, Harry Reid seldom left the small town of Searchlight, Nevada, without his parents. But the summer after his brother Dale had graduated from high school, he invited young Harry to join him in Ash Fork, a tiny dot in Arizona along Highway 40. Dale had found work at a gas station in the railroad town near an Indian reservation. Not much was memorable about the town, the railroad, or the people Harry met, but he never forgot one lesson he learned there.
Dale’s girlfriend had a younger brother about a year older than Harry, and they spent the summer playing games together. Reid could easily outplay him but invariably lost anyway. “I never won a game,” he wrote decades later, “because as we got into the games, he would keep changing the rules.” He resolved never to do the same himself. He would try to understand the rules and stick to them. “That is what I think life is all about,” he explained. “Don’t change the rules during the game.”
That resolution held for more than 50 years—until it cracked.
By the end of 2012, Reid was almost out of patience. The Senate majority leader had been frustrated, then infuriated, by what he saw as the tyranny of the minority, which was racking up filibuster after filibuster on President Barack Obama’s judicial nominees.
Less than a decade before, Reid had been on the other side of the issue. In 2005, he had led a Democratic minority in using the filibuster to block 10 Republican nominees for appellate courts, prompting Republican Majority Leader Bill Frist to consider invoking the so-called nuclear option. Frist had wanted to remove the filibuster, which required a supermajority of 60 votes to overcome in the Senate, for most judicial nominees, so that they could receive a straightforward up-or-down vote requiring only a simple majority of 51 senators. Reid had successfully rallied senators in defense of the filibuster, and Frist had backed down. “The nuclear option is gone for our lifetime,” Reid had triumphantly declared.
But now Democrats were in the majority, and Republicans were discovering new virtues in the filibuster. In August 2012, Republican Senators Roger Wicker and Lindsey Graham wrote Reid “to express our concern regarding your recent remarks suggesting major changes to the rules of the Senate—changes that would severely compromise the rights of the minority.” The Republicans reminded Reid of his 2005 stance.
By the beginning of 2013, according to those who knew his thinking at the time, Reid was already prepared to end the filibuster for lower-court nominations. Then Obama nominated former Republican Senator Chuck Hagel as his secretary of defense. For the first time, the Senate filibustered a secretary of defense, and Reid had had enough.
“I think he basically came into 2013 ready to go there and just get the votes,” Adam Jentleson, Reid’s former deputy chief of staff, told me. “So I think you can probably find some statements from him during the course of the year that there were no plans. But I think his own mind was made up, and there were a lot of squishy votes.”
It was more than the historic nature of the Hagel filibuster that catalyzed Reid to limit the filibuster, Jentleson said; Republicans also blocked Obama sub-Cabinet posts and judges for the D.C. Circuit Court of Appeals. The National Labor Relations Board, a crucial body for unions, could not even get a quorum. Reid defended his action by saying that rules had been changed plenty of times, and he was downplaying what a watershed this could be. He knew it, and the majority leader also firmly believed that the future of the Obama presidency was at stake.
Reid chafed at any criticism that he was being hypocritical, denying that the only difference between 2013 and 2005 was the party in power. He insisted that Senate Minority Leader Mitch McConnell had made it his mission to thwart Obama at every turn and had changed the norms of the Senate. He also put his change of position in the context of his evolution on other issues, including abortion, immigration, gun control, and gay rights. It was not situational, he argued; it was a sign of maturity.
Reid knew that corralling the votes inside the caucus might be difficult. “There were half a dozen members that didn’t want to vote,” Reid’s No. 2, Dick Durbin, later told me. “They felt it was the wrong decision. I think it was a terrible choice: either keep with the McConnell way of stopping these judges through the filibuster or changing the rules of the Senate in a way that would have a profound impact.”
Obama, for his part, did not actively engage with senators. But he understood where Reid was coming from. “I think that Harry was an institutionalist and had great respect for the Senate traditions,” Obama told me in 2022. “By that point, he had witnessed—we had all witnessed—a level of obstruction when it came to judicial nominations that we had never seen before. What had begun as selected instances of highly controversial Supreme Court justices being blocked was now a circumstance in which, just routinely, they were just going to prevent a Democratic administration from filling vacancies and on the federal bench. And McConnell was very explicit about the strategy. He didn’t need a rationale; it no longer required that somehow.”
Reid knew he didn’t have the votes in the caucus, that he would have to, in the words of one of his staffers, “lead them all to water on it.” He slowly and methodically built the case that Obama’s judges would never be confirmed if a supermajority vote was required. “I had to be talked into it,” Senator Patty Murray, a member of his leadership team, told me. “I had to really think about what the process was and what it would mean. And he’d reached his conclusion long before he talked me into it.” Murray said Reid was able to persuade her and others to make the change “by sharing his frustration. And he was passionate about this, and the need to fill the courts and fulfill our responsibilities.”
As Reid lobbied his reluctant caucus members, he would seek counsel from the man he replaced, Tom Daschle: “I can’t tell you the number of times he lamented how broken the Senate had become and would say to me what he said to me on countless occasions, ‘Tom, it’s nothing like when you were here, when we were there together,’” he told me. In Reid’s autobiography, The Good Fight, he had railed against the Republicans talking about invoking the nuclear option in 2005. He’d discussed the book in 2008 with Daschle on C-SPAN. “What the Republicans came up with was a way to change our country forever,” Reid had said. “They made a decision that if they didn’t get every judge they wanted, then they were going to make the Senate just like the House of Representatives.”
[Read: The smart way to fix the filibuster]
Filibusters had increased geometrically since that conversation, but Reid had also made the timeless “senatorial saucer” argument to Daschle—that is, the House, heated by the passions of the people, would see its legislation tamped down by the more deliberate Senate. He’d concluded that section of the conversation with his friend by saying he believed that invoking the nuclear option “would ruin the country.”
Yet here he was, five years later, with California’s Barbara Boxer and Dianne Feinstein, the last holdouts, ready to do what he had said would be the ruination of America. On November 21, knowing he had the votes, Reid invoked the nuclear option for all presidential nominees except prospective Supreme Court justices, and it passed 52–48. Three Democrats voted against the rules change—Carl Levin of Michigan, Joe Manchin of West Virginia, and Mark Pryor of Arkansas—but Reid had wiggle room.
Republicans, led by McConnell and House Speaker John Boehner, claimed that the Democrats were trying to distract from the poor rollout and tanking approval numbers of the Affordable Care Act, and promised that the filibuster vote would come home to roost at the ballot box the next year. After the vote, Reid was elated, while another member of his leadership team, Chuck Schumer, seemed saddened. Schumer and Reid had talked for hours about the scheme, but Schumer was a reluctant yes vote—or so he would say later.
After the vote and unbeknownst to Reid, Faiz Shakir, a top aide who functioned as his bridge to the left, had gathered dozens of progressives into a room in the Capitol to celebrate. Many of those were special interests Reid and his team had harnessed to pressure his colleagues: union activists upset that the NLRB had been stymied, Common Cause members, MoveOn.org folks. When Reid entered the room, it thundered with applause. (Several Reid staffers believed if he could have rounded up the votes to end the filibuster for legislation, he would have done that, too.) Reid, who rarely second-guessed himself, understood at the time that the partisan winds would eventually shift. “I didn’t look that far ahead,” he later told me. “I knew that I wanted to get this done at this time. It was something that was important for the body. I’d worry about the future at a later time.”
Shakir told me Reid considered what might happen in a different scenario, but the discussions generally didn’t last long for one reason: “Let’s not be naive. I think he felt that Hillary Clinton would likely be the next president of the United States.”
In January 2017, Donald Trump was sworn in as the 45th president. It took McConnell only three months to invoke the nuclear option for confirming Supreme Court justices. By the end of Trump’s first term, Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh had each been confirmed by narrow majorities. Many on the left blamed Reid for enabling the change; many on the right gleefully thanked him because Trump was able to appoint three high-court members. Reid said none of that trolling bothered him, and others said McConnell did not need a precedent to do what he did, that he was just waiting for a Republican Senate and White House occupant.
[From the January/February 2024 issue: A MAGA judiciary]
Reid continued to insist that he had no regrets for the move. Almost exactly two years after McConnell changed the rule to include high-court justices, Reid published an op-ed in The New York Times saying that the filibuster had become an anachronism and needed to be abolished because the Senate had “become an unworkable legislative graveyard.”
Reid seemed to truly believe, despite the partisanship that suffused the column, that the Senate had been badly damaged. But he was alternately bemused and furious as Democratic senators, some of whom voted for the 2013 change, expressed buyer’s remorse. “A couple of Democratic senators today have very short memories because they have stated publicly on the record that they wish that we had not changed the rules,” Reid said before he died. “That’s the dumbest damn thing. They were there. They voted for it. Now to come back and try to rewrite history is impossible.”
When we spoke, the Republican Senator Richard Shelby of Alabama, a onetime Democrat and one of Reid’s closest friends in Congress, chuckled about Reid being in high dudgeon. Shelby said he believes that Reid, if similarly situated, would have done just what McConnell did to enhance the prospects of remaking the Supreme Court. “If you’ve already broken the glass, why not?” Shelby said wryly.
Schumer, Reid’s close friend and ally, had an I-told-you-so moment shortly before Reid’s death about the 2013 maneuver. “I told him I thought it was a bad idea, but he was just so fed up and so pissed off,” Schumer told me. “I did get him to make sure that we didn’t go nuclear on Supreme Court judges. And look what happened … McConnell came in and got rid of the role right away. But yes, I thought going nuclear would have bad consequences for us. And on that one, I may have been right.”
This article is adapted from Jon Ralston’s new book, The Game Changer: How Harry Reid Remade the Rules and Showed Democrats How to Fight.