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The End of the Tunnel

The 100 year old cloture rule that required 60 votes to pass bills and confirm judges and many of the president’s appointments may be in its final death throws. It came into formal existence just before World War I when several senators objected to a bill that would have armed American merchant marine vessels. Senator Robert LaFollette and a group of men saw this a backdoor into joining the war which they opposed.

Cloture, better known as the filibuster, has served it purpose in the Senate to slow down the rambunctious House and foster bipartisan agreements that protected the rights of the minority party, until 2005. Since then it has been used a partisan cudgel to block any and all progressive bills and the appointment of even moderate judges. During the Obama administration, the Republicans when they were in the minority used to bring congress to a screeching halt.

There is now a filibuster under way by the Democrats in opposition to the nomination of Judge Neil Gorsuch to replace Justice Antonin Scalia who died over a year ago. Republicans are complaining that this is pay back for Sen. Mitch McConnell’s refusal to even given President Barack Obama’s choice, Judge Merrick Garland, a hearing or even interviews. The Democrats don’t deny that this is a factor but they argue that Gorsuch is a corporate tool and was not forthcoming with his judicial views during interviews and his hearing. They also have strenuous objections to many of his opinions and rulings, one of which was overturned unanimously by the Supreme Court during the hearing. Now, McConnell has threatened to kill filibuster for Supreme Court justices just as Sen. Harry Reid (D-NV) killed it for presidential appointments and lower court judges. Many pundits are blaming Reid but the reality is filibuster has been dead for a long time, ever since the Republicans started using it as a weapon.

In his post at TPM EdBlog, Josh Marshall details how it came about at the hands of the Republican majority:

Back in 2005, when now-Justices Roberts and Alito came up for confirmation in rapid succession, Republicans made it very clear that the they would resort to the ‘nuclear option’ if Democrats tried to block either nomination. In response Democrats worked out a deal which amounted to preserving the Supreme Court filibuster on condition that they never use it. In other words, it was abolished.

There’s an argument that it’s worse to have it de jure abolished than de facto abolished. But it’s not a terribly good argument. It’s also argued that it is the better part of wisdom for the Democrats to put off this fight for the next confirmation battle since that would be the one that would turn the Court decisively to the right. (Gorsuch’s confirmation would just keep the balance where it was before Justice Scalia died.)

This is also a poor argument.

Mainly, this is a poor argument because, as I said, the Supreme Court filibuster has already been abolished. But if we entertain the notion that it still exists, the incentive to abolish it will be wildly greater when Republicans have the opportunity to turn the Court decisively to the right than it is now merely to maintain the status quo ante. In practice it makes no difference: There’s no Supreme Court filibuster. Democrats will never be allowed to use it.

There’s a chance of course that a couple institutionalist Senate Republicans will prevent all this from happening. That would be an interesting development. I doubt it will happen. [..]

As Rep. Adam Schiff put it yesterday on Twitter, Mitch McConnell’s historically unprecedented and constitutionally illegitimate decision to block President Obama from nominating anyone a year before he left office was the real nuclear option. The rest is simply fallout. Senate Republicans had the power to do this. But that doesn’t make it legitimate. The seat was stolen. Therefore Gorsuch’s nomination is itself illegitimate since it is the fruit of the poisoned tree.

Democrats likely have no power to finally prevent this corrupt transaction. It is nonetheless important that they not partake in the corruption. Treating this as a normal nomination would do just that. There are now various good arguments to vote against Gorsuch’s nomination on the merits. But to me that’s not even the point. Democrats should filibuster the nomination because it is not a legitimate nomination. Filibustering the nomination is the right course of action. If Republicans react by abolishing the Supreme Court filibuster, so be it. It didn’t really exist anyway. Again, they should filibuster this nomination because it is the right thing to do.

The filibuster may be dead for Supreme Court justices, it will still exist for legislation for now. It’s only time before McConnell and his right wing horde abolishes it entirely, hopefully, at a huge cost to the Republican Party in 2018.

Hold onto to your hats, it’s going to be a really bumpy ride for the Republic.