Eric Kirk’s Sohum Parlance commenter Not a Native, who I believe hails from McKinleyville wrote this yesterday…
The test of Democrat’s resolve and fortitude to demonstrate political courage is the Gorsuch nomination. So far, I don’t see demonstrations or rallies being organized. Instead, I see pundits calling for Dems to “show good governance” and accede to his confirmation.
Dems seem to be embracing being petty and spiteful, appealing to their own “angry base” by fanning resentment over Obama/Garland. When did anger, resentment, and payback become core Democratic values? I wish Obama would speak out on this.
If I’m reading Not a Native right, and he is generally someone I otherwise often agree with, he is saying that in the name of good governance Democrats should re-consider their intention to filibuster the Gorsuch nominee. On this one, we disagree, but it’s insightful and it allows the context through which I think the Gorsuch process should be viewed; good governance and the politicization of Senate procedural rules.
I believe the Supreme Court inherently is a political organization, if only in the sense that we, as humans are all biased. I also believe in the rule of law and believe that a President’s nominee should be given a fair hearing in the Senate. I don’t believe that Neil Gorsuch’s nomination should be blocked based on his views. He is a conservative judge nominated by a conservative party and the people who voted for them. He will serve honorably even if I would personally disagree with 90% of the controversial jurisprudence.
However, this is not about Neil Gorsuch, this is about President Obama, his nominee Merrick Garland, President Obama’s 4th of 4 years of his second term and the people who voted for him (65 million of them). The Republican Party’s politicization of this Supreme Court seat was mind-numbing given their rule of law rhetoric. Denying Merrick Garland’s confirmation hearings in the Senate was the ultimate politicization of what Republicans argue is an a-political seat whose jurisprudence is based solely on the original intent of the Constitution.
So back to Not a Native’s quote. The filibuster, to me, should itself be considered nuclear option which has been used in increasing and a-historic numbers since the 1970’s. I do not think that Democrats should use this, except in extraordinary circumstances. Both parties use the filibuster, preventing good, or at the very least effective, governance as, once initiated, it requires 60 of 100 Senators to overcome. This means, with one party who I don’t believe has “good governance” with regard to the whole of the population as a priority, the bar to stop beneficial legislation is very low. Only 40 of 100 legislators are needed to stop legislation.
Of course this would come with consequences, but I think these would work themselves out in time and would re-invigorate people’s interest in elections and government. It would be on all of us to then make sure people have the whole story, not just the take that the infotainment complex would like us to know.
Having said that all that, I am glad Democrats have this Senate procedural tool and I heartily support it’s use, in this case. (Sorry Not a Native)
I believe the Republicans acted outside the Constitution in denying Garland a trial. I would support the Democrats in the continued use of the filibuster on any Trump nominee until the Merrick Garland is nominated by President Trump and the Senate is able to hold confirmation hearings on former President Obama’s nominee. Of course this will never happen and of course Senate Majority leader McConnell should of course use the nuclear option to break the filibuster. This is where we should be heading and I think it would be an appropriate use of all the administrative tools we have to continue governing.
The nuclear option is not the end of the world, it’s just an indication that politics is ultimately about power, not congeniality. Of course we should expect those we chose to govern in good faith, not punitively, and I don’t think a world without a 60 vote threshold necessarily dooms us to a cycle of partisan tit-for-tat.
We need the rule of law and we also need rules. If Republicans feel they adhered to the rule of law in denying Merrick Garland his hearing, in part because some of them felt this is exactly what Democrats would have done, well then we then need to be more specific in the rules by which the Senate is governed.
We can start with on what day, exactly, the President no longer has the right to offer a Supreme Court nominee who can expect an up-or-down vote in the Senate. Right now, the precedent set by Republicans is this day is either the second Tuesday in November a year out from the Presidential election or on January 1st of a Presidential year. (I haven’t been paying close enough attention to their faux rhetoric to know which one it is.)
Wouldn’t it be the ultimate of ironies if Republicans have to argue in 2019 that a nominee by President SHOULD get seated instead of the decision being brought before the people?
Trump’s Supreme Court nominee opens his testimony with a massive falsehood; If judges aren’t political, why isn’t Merrick Garland a justice? (Ian Millhiser | ThinkProgress | March 21, 2017) (Note, Title referenced is actually the subheading of the article)
The Problems with Originalism (Ken Levy | The New York Times | March 22, 2017)
Breaking the Filibuster in One Graph (Ezra Klein | The Washington Post | December 23rd, 2010)
The History of the Filibuster, in One Graph (Ezra Klein | The Washington Post | May 15th 2012)
Filibuster Data from Senate.gov.