Most of us old enough to remember can recall a time when the Senate involved a fair amount of compromise, at least on presidential appointments. It pretty much boiled down to the idea that what goes around comes around. Unless an appointee was egregiously unqualified rather than merely partisan, a president ordinarily was given his nominees. That wasn’t because people were so loving and wonderful, so eager to sing kumbaya together; it was because they knew the same courtesy would be extended to them when they had the presidency.

The nuclear option was similarly avoided for the same reason. If a party did away with it, they wouldn’t have it to fall back on when the time came. They wanted to preserve minority rights to block things when they no longer held the Senate and the presidency. No one wanted to be the first to throw that away, lest they need it in the future.

So the two things worked together to create more cooperation, or at least the appearance of more cooperation, than has existed in recent years. I’m not going to go into the history of how and when this ended, but major turning points are often thought of as the Bork nomination, and a host of other events described here, with both parties involved in sometimes advocating it. The most recent and most extreme move, however, was made by the Democrats during Obama’s presidency, culminating in November of 2013:

On November 21, 2013, the Senate voted 52”“48, with all Republicans and 3 Democrats voting against, to eliminate the use of the filibuster against all executive branch nominees and judicial nominees other than to the Supreme Court. At the time of the vote there were 59 executive branch nominees and 17 judicial nominees awaiting confirmation.

The Democrats’ stated motivation for this change was expansion of filibustering by Republicans during the Obama administration, in particular blocking three nominations to the United States Court of Appeals for the District of Columbia Circuit. Republicans had asserted that the D.C. Circuit was underworked, and also cited the need for cost reduction by reducing the number of judges in that circuit…

As of November 2013, President Obama’s nominees had faced 79 votes to end debate (i.e. cloture votes), compared to just 38 during the preceding eight years under President George W. Bush. Most of those cloture votes successfully ended debate, and therefore most of those nominees cleared the hurdle. Obama won Senate confirmation for 30 out of 42 federal appeals court nominations, compared with Bush’s 35 out of 52.

Regarding Obama’s federal district court nominations, the Senate approved 143 out of 173 as of November 2013, compared to George W. Bush’s first term 170 of 179, Bill Clinton’s first term 170 of 198, and George H.W. Bush’s 150 of 195. Filibusters were used on 20 Obama nominations to U.S. District Court positions, but Republicans had allowed confirmation of 19 out of the 20 before the nuclear option was invoked.

So, why did the Democrats do it in November of 2013? It doesn’t seem as though things were all that much worse for them regarding nomination confirmations than they had been in previous administrations. I’m not sure why they did it, but I think it was that the legislative philosophy had become “if we have the power to do it, we should do it” (Obamacare being the template).

The Democrats knew that in 2014 they might lose the Senate, and at any rate they weren’t going to get 60 Democratic senators into office. So in November of 2013, when they activated the nuclear option, they only had a year left of Democratic control of both the Senate and the White House, and that’s when the nuclear option makes sense.

I’m convinced that Democrats also thought it likely that they’d always keep the presidency, or just about always. They believed that Electoral College demographics now made it almost impossible for a Republican to win that office. So in the future, after the nuclear option had been implemented, even if Democrats lost the Senate and became a minority there the nuclear option wouldn’t hurt them because of their retention of the presidency. In other words, a party ordinarily has no need to block the appointments of a president of that same party, so no need to keep the filibuster for those appointments.

One thing I really think Democrats did not envision occurring was what in fact occurred: Republican president, Republican Senate. That’s where we are now, with the nomination of Neil Gorsuch to SCOTUS. It’s certainly difficult to object if the Republicans trigger the nuclear option for SCOTUS justices, although Democrats can always argue that they themselves limited it to all executive branch nominees and judicial nominees except the Supreme Court. That argument is plenty weak—after all, if not the former, why not the latter—but right now there are other anti-Gorsuch arguments they’re mounting. The biggest one seems to be that the seat was “stolen” from them because last year the Republicans (who were in the majority at the time) blocked hearings on Obama’s appointee, Judge Garland.

I have no doubt that the theft argument appeals to a great many Democrats. But it’s awfully hard for Democrats to argue along that line to other than the party faithful, because their own determination to frustrate and block anything and everything they can in the Trump administration is so transparently clear.

The NY Times is leading the charge, as usual, with its august and oh-so-objective editors authoring an editorial today entitled, “Neil Gorsuch, the Nominee for a Stolen Seat.” I’m not going to waste my time fisking it; it fisks itself. But I will say it’s a small masterpiece of the sort of subtle and not-so-subtle misdirections and distortions in which the Times specializes. It ends this way:

Mr. Trump’s failure to choose a more moderate candidate is the latest example of his refusal to acknowledge his historic unpopularity and his nearly three-million-vote loss to Hillary Clinton. A wiser president faced with such circumstances would govern with humility and a respect for the views of all Americans.

Isnt’ that beautiful, in its own way? The harping on Trump’s loss of the popular vote, as though that has any meaning? The high and respectful tone? The implicit pretense that a Democrat would somehow rise above all that petty partisanship and show the sort of “humility and respect for the views of all Americans” the Times is demanding? The sort that its champion, President Obama, showed when Obamacare was passed and so many other unpopular measures were pushed through because, after all (as Obama himself has said): “I won.”

Well, Trump won. And no serious person expects any president, liberal or conservative, to appoint a moderate to the Supreme Court if that president’s party also controls the Senate. That happens to be the situation right now.

Let me add that two things seem to be clear at this point. The first is (and I don’t think he’s gotten enough credit from the right for this) McConnell stood firm against pressure to confirm Garland, and that has made this opportunity possible. The second is that Trump has made good on his promise to choose a conservative.

Next we will discover whether the Democrats will force the GOP’s hand and cause them to extend the nuclear option to SCOTUS in order to get Gorsuch confirmed, and whether the GOP will actually do so if pressed.