The hand-wringing over whether Senate Democrats should filibuster Neil Gorsuch makes me glad I have paws…. (More)
“Senate Democrats set the stage…”
As everyone knows, the Senate was a collegial body until Democrats blew it up in 1987 by voting against Robert Bork, or maybe in 2003 when they filibustered D.C. Appeals Court nominee Miguel Estrada, which they had absolutely no right to do because the president is entitled to see his judicial nominees confirmed, unless he’s a Democrat, in which case the Senate should not even hold hearings – and not just for a president’s final year in office but maybe indefinitely – although that ‘rule’ would not apply to Republican presidents because it would be unprecedented for the opposition party in the Senate to block a president’s nominee.
Yep, that’s all the horseshit packed into this Bloomberg lead:
Senate Democrats set the stage for a confrontation this week that likely will change how Washington works, as they assembled more than enough votes to block President Donald Trump’s first Supreme Court nominee under the current rules.
It’s true that the opposition party has never before filibustered a U.S. Supreme Court nominee. It’s equally true that the opposition party had never before refused to even consider a nominee until for the rest of a president’s term … and that same opposition party threatened to continue that blanket obstruction for four or eight more years had Hillary Clinton won the White House.
Fact is, Democrats have enough votes to block Neil Gorsuch under the existing Senate rules. They also have solid advise-and-consent reasons to do so: Gorsuch’s evasiveness in the confirmation hearings was matched only by the ideological rigidity of his appellate court rulings.
So yes, Senate Republicans will eliminate the filibuster for Supreme Court nominees, and perhaps even for legislation. But that will not, as the hand-wringers insist, turn the Senate into merely a smaller version of the majority-rule House. Senators must win statewide elections and there are nowhere near as many “safe states” as there are “safe districts.” Senators have a naked political motivation to be more moderate than the typical House member, whose only real fear is losing a primary battle.
“Mitch McConnell wants to preserve an ambiguous situation where the norms say one thing and the rules say another”
We already live in a world where a Republican president has a 50-vote standard to confirm a nominee to the Court. The only question is whether Democratic presidents have the same standard. The worst possible outcome for Democrats would be to allow Republicans to fill a vacancy with 50 votes while forcing their party to muster 60. And there is a lot of reason to believe this is the case right now.
That is to say, Merrick Garland is not already sitting on the U.S. Supreme Court … because Senate Republicans had a majority and refused to even hold hearings.
Mitch McConnell wants to preserve an ambiguous situation where the norms say one thing and the rules say another. This is to his advantage, because he is a serial violator of norms. This isn’t a moral question – he’s a brilliant tactician and he’s very good at identifying political strategies that are legal but which have not been used due to social convention. If McConnell can use the threat of the nuclear option to make the filibuster of a Supreme Court nominee a useless weapon for the opposing party, he can preserve it as a potential useful one for himself. If Democrats don’t make McConnell abolish the Supreme Court filibuster, he may use it to blockade their next nominee, and they will have only themselves to blame.
If Senate Republicans eliminate the filibuster for Supreme Court nominees this week, then the new standard is very clear. A president – any president – needs only 51 votes to seat a U.S. Supreme Court judge.
Yes, that means the Supreme Court will be an issue in every Senate election, as one Republican complained this week. But the Supreme Court – and the Senate’s other advise-and-consent duties – should be an issue in every Senate election.
Yes, Senate Majority Leader McConnell make take this opportunity to eliminate the filibuster altogether, for legislation as well as for confirmation votes. And yes, that means Senate Republicans could repeal the Affordable Care Act, or any other law, with a simple 51-vote majority.
Fine. Let them do that, and let them own the political consequences of their votes. Part of the reason our elections are so screwy is because No One Is Responsible For Anything.
Obamacare was stingy with premium subsidies, deductibles, and out-of-pocket limits – and lacked a public option to truly contain costs – because a more progressive bill couldn’t get 60 votes in the Senate. For all the blather about a “60-vote supermajority,” in fact Democrats never really had 60 votes, due to the delay in seating Sen. Al Franken, the illnesses of Robert Byrd and Ted Kennedy, and the fact that Joe Lieberman caucused with Democrats but was really a Republican. The House version of Obamacare was much more progressive, but by the time it passed Scott Brown had replaced Ted Kennedy and we were stuck with a watered-down Senate bill.
But who gets blamed for the ACA’s meager subsidies and high deductibles? Not the Senate Republicans and conservative Democrats who demanded that sick people have “skin in the game” when they went to the doctor or hospital, as if being ill or injured was not “skin” enough. No, Senate Republicans blamed President Obama for the ACA’s stinginess. And people believed them because, in our convoluted system … No One Is Responsible For Anything.
So yes, let Republicans blow up the filibuster, completely. Let a simple Senate majority confirm Supreme Court nominees, and pass legislation, and let the senators who make those votes own the consequences.
Democrats won’t like the results over the next four years, with the God-King in the Out House and Republicans holding a slim Senate majority. But the GOP won’t have power forever, and Democrats will actually be able to do something the next time we win.
Photo Credit: Nicholas Kamm (AFP/Getty Images)
Good day and good nuts