A Safer Response to Garland-Gorsuch


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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194 Responses

  1. Avatar Doctor Jay says:

    I believe some television guy asked McConnell if he would support such a rule and McConnell said no. Pretty much a stance of “what’s mine is mine, and what’s yours is negotiable”.

    I don’t really know how one escapes this sort of neverending spiral of escalation. But this isn’t going to do it. The rule will last right up to the point where the votes exist to overturn it, to someone’s political advantage.Report

  2. Avatar PD Shaw says:

    Rule seems fine to me, and preferable to getting rid of the filibuster. Actually, I probably don’t care about the filibuster that much; it just seems that doing so during the Trump administration is not the best time to do it.

    Long-term I would prefer Constitutional term limits, staggered in a way to ensure a POTUS gets one pick, since I think the politics is inevitable, but that the penchant for at least one party to nominate 40 year olds is tying up the courts for generations based upon the politics of the moment.Report

  3. Avatar Nevermoor says:

    The rule would enshrine a “principle” that makes no sense and, as you say, increases the politicization and dysfunction of the Supreme Court by increasing the odds that it is stuck with 8 members.

    It would also provide a post-hoc legitimization of what happened with Garland.

    I vote no.Report

    • Avatar PD Shaw says:

      It doesn’t make sense to have a confirmation vote too close to a Senate election because the upcoming election makes the vote a central issue in the Senate elections. We can dicker about what is “too close,” but when Senators are actively campaigning for re-election, they are acutely aware of the potentially fatal consequences of a vote on the SCOTUS.

      Biden (1992): “it would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.” I think he was animated by the blowback from the Thomas hearings. Senator Alan Dixon of Illinois got primaried out of his seat largely based upon that single vote. This is all one of the consequences of direct election of Senators.Report

      • Avatar pillsy says:

        It doesn’t make sense to have a confirmation vote too close to a Senate election because the upcoming election makes the vote a central issue in the Senate elections.

        This doesn’t make sense to me. Why shouldn’t SCOTUS confirmation votes be central issues in Senate elections? They’re an important thing that Senators do!Report

        • Avatar Doctor Jay says:

          Yeah, I think they need to own their votes. But senators these days are so used to having things their way – they have votes when they want to on their own schedule, that when a Justice dies it upsets them.

          What a bunch of softies. Vote how you vote and own it.Report

        • Avatar PD Shaw says:

          My main point would be that casting the vote after the election is not any more or less political than casting it before the election., its all a question of proximity.

          If you ask Senator Dixon he would say that it’s not fair to have his twelve years as Senator judged by a single vote, which was in elevated importance because of its proximity to elections. I suppose it depends on what you think the Senate’s role should be in confirmations, and whether or not voters agree with you.Report

          • Avatar pillsy says:

            I’m sure Senator Dixon would answer that, because it’s likely very convenient for Senator Dixon to have people believe that.

            Working to reduce the salience of important votes by making sure they happen far from elections seems like a not-so-great idea to me.Report

            • Avatar PD Shaw says:

              The reason the Senate was given responsibility for advise and consent for judicial appointments was that the body was supposed to be removed from direct democratic pressures. We can move to a system of direct elections of Justices if you prefer, and we will see the difference.Report

              • Avatar pillsy says:

                Right, but perceptions of the role of both the Senate and the Court have shifted considerably since then, and much of the shift is not at all recent. We’ve had direct election of Senators for over a century.Report

              • Avatar PD Shaw says:

                Since the 17th Amendment was effective, I believe we’ve only had one Justice nominated in an election year that was confirmed before the election, and that was Democrat Benjamin Cardoza, nominated by Republican Hoover in the runup to one of the worst electoral defeats for a party in US History. Most Justices, given the opportunity, resign strategically, avoiding election years.

                A lot of things change, there is an extended and televised confirmation process that allows for more popular engagement with the process. Clarence Thomas’ ideology didn’t galvanize popular opposition to his confirmation, it was the he-said/she-said of sexual harassment charges. The process has become both more open and less edifying, which challenges traditional notions of gentlemanly restraint and fair-dealing that the appointments clause assumed.

                I don’t see a problem with structuring a time-out rule that reflects what is informally being done and which would try to strike a good balance between openness and deliberative functions.Report

              • Avatar JBF says:

                You are wrong. I’ll point to this article from SCOTUSblog.Report

              • Avatar PD Shaw says:

                Your link considers an election year to be 365 days from an election (up to November of the previous year) I mean it in the calendar year in which the election occurs (up to January).

                Burt’s proposal is limited to nominations made on or after February 23 of the election year. Since Cardozo was nominated February 15th, he would have still gotten a hearing under this proposed rule (assuming a hearing was even held, those weren’t always normal).

                John Clarke was nominated by Wilson on July 14, 1916; the Seventeenth Amendment was first applied in the 1914 election, so I should have included him, and he would not get a hearing under this rule.Report

              • Avatar Burt Likko says:

                We can move to a system of direct elections of Justices if you prefer, and we will see the difference.

                We can, but I’d pretty much guarantee you that you won’t like the results, no matter on which side of the spectrum you might be found. See, the big danger with elections is, sometimes your side loses.Report

              • Avatar PD Shaw says:

                Anybody can win so long as they play the game. I think the main issue with more direct democracy on the Justices is going to be that the overall quality will probably diminish whatever their ideology.Report

              • Avatar pillsy says:

                Quality in what sense?Report

              • Avatar PD Shaw says:

                Electioneering promises by justices to vote certain ways. Populist figures with minimal or non-existent legal backgrounds. Expensive campaigning between the plaintiff’s bar and the defense bar that leaves the impression that justice is not blind, but bought and paid.Report

              • Avatar CJColucci says:

                In states that have elected judiciaries, it is generally regarded as unethical to promise to vote a certain way. I don’t have strong views about the relative merits of electing or appointing judges, except to the extent that one method or the other increases my own chances, but there is something odd about electing judges when the candidates can’t tell the voters anything they might want to base their votes on.Report

              • Avatar Nevermoor says:

                That is the single worst way to pick any highly skilled professional. Look no further than the heavy politicization of state supreme courts.Report

  4. Avatar North says:

    McConnell has already dismissed that exact suggestion since it could potentially encumber his party and rules only are legitimate to him when they can be used to encumber Democrats, otherwise they’re an unconscionable imposition on democratic norms.Report

    • Avatar Patrick says:


      This, by the way, is our problem right now. It’s not the SCOTUS rules or the filibuster rules, it’s the inability of Senate leadership to give a shit about their institutional norms.

      And that goes all the way down to the rank and file. If I hear one more moaning about how nobody wants the filibuster to be gone but it just seems inevitable from somebody, I’m going to want to violate my rule about no violence in civil society.

      Just vote no, then, you dumbass. Own your own obstructionism last year, admit it was a bad idea, and demand a centrist from the sitting President.

      Or own the fact that you think replacing Scalia with Scalia II is more important than your own office and branch of the government.

      Because that’s the truth, right there.Report

      • Avatar Morat20 says:

        Off the top of my head, I can think of a guy who got a glowing review from Orrin Hatch that Dems would go for.

        Gar-something. Garlake? Garlock?

        Garland. That’s the guy. I mean sure, Orrin Hatch described him as the sort of guy who’d have the GOP vote yes with no qualms, but I’m pretty sure the Democrats would vote for the guy.Report

        • Avatar Dark Matter says:

          Garland. …Orrin Hatch described him as the sort of guy who’d have the GOP vote yes with no qualms, but I’m pretty sure the Democrats would vote for the guy.

          Wasn’t that before the voters gave the Senate to the GOP for the purposes of stopping Obama?Report

        • Avatar Aaron David says:

          Sucks to be a pawn…

          Especially when people start saying you’re a bishop.Report

      • Avatar Aaron David says:

        “This, by the way, is our problem right now. It’s not the SCOTUS rules or the filibuster rules, it’s the inability of Senate leadership to give a shit about their institutional norms.”

        I disagree 100%.

        The problem right now is that one huge portion of our body politic wants to go one way, and another huge portion wants to go the other way. And as the D’s have immediately gone to be the new party of NO!11!!1 the are in the same idiological position as the R’s were eight years ago. Their base wants no part of what is going on. When the R’s held the Senate, took the prez. and held the house, the people showed that they approved. When they filibustered judicial appointment under Obama and Reid went little nuclear, when the D’s Borked, all the way back to FDR and surely further, these little conveniences of comety or mutal respect, what have you, have always fallen away in need, as they only work went there is a fiction of mutual goals.

        The institutional norm is simply Advise and Consent. No word on what that looks like, only if what is done works. That is politics. Arcane Senate rules only serve to help those in power, those who can work the system. If the R’s had enough votes to filibuster, and voters to support them, but they “abused” it, then they didn’t violate the norms, did they?
        No, they exercised the power given to them by “institutional norms.” “But they didn’t do it the way I feel they should.” And Reid was right to stop that. And the voters gave them the final answer.

        We are back(?) in an era of hardball politics, and if the constitution allows it, it goes. If Pelosi or Mitchy McC want to put a little topspin on it, well that is part of the game. No different than spiking the ball or working the refs.Report

        • Avatar Burt Likko says:

          Call it a semantic quibble if you prefer, but I’d dispute the claim that “advise and consent” is the “institutional norm.” “Advise and consent” is the Constitutional mandate. As you correctly note, that’s an ambiguous phrase. Here’s another mandate: from time to time the President is required to report to Congress on the state of the Union. That, too, could mean a lot of things.

          So what happens next is a “law” is created, pursuant to the Constitutional requirement, fleshing out how that mandate is going to be discharged. In the case of a judicial nomination, we’ve passed laws that give the President basically complete discretion to nominate anyone he wants to a judicial position, and the Senate then has the option to conduct hearings or not, and the Senate then has to vote its approval of the nomination by a majority vote to “confirm” the nomination. If this law is not observed, there is a legal effect — the “advise and consent” function is not discharged, and there is no appointment.

          A “norm” is something that is customarily done as a part of the action, within the culture. In the context of the State of the Union Address, there is a norm that the Members of Congress stand and applaud out of respect for the President when he enters the House chamber. There is no law requiring that a Member do this; indeed, a Member is free to not do so should that Member wish and might choose to defy the norm to make a political point.

          You might be interested to note that the Constitution does not require that a judge be a lawyer. There are laws that require that magistrates and bankruptcy judges be lawyers. The idea that a Justice of the United States Supreme Court must be a lawyer is a norm.

          At issue here is the norm of “comity,” which indicates a degree of mutual respect between the parties and deference to the President’s power of appointment. As a general rule, the principle has been understood that when the President makes a judicial appointment, the Senate needs to have a good reason not to confirm that appointment, and simple political disagreement is not a good enough reason. This isn’t written down anywhere.

          So Mitch McConnell didn’t break any law or violate the Constitution when he refused to authorize hearings or hold a vote confirming Judge Garland. And he can claim, going back to 1986, that it was the Democrats who first violated the norm of comity with respect to Supreme Court nominations because it was the Democrats who didn’t like Robert Bork’s legal scholarship and intermediate-level judicial decisions, and who even did a good deal of misrepresentation of what his opinions really were, to block his nomination.

          IMO, Bork’s is actually a gray area, because the Democrats’ central objections to him were based on the nature of his legal rulings, which you could argue goes in part to his political perspective and in part to the quality of his legal rulings. But this is when the intense politicization of SCOTUS really reached Congress and the electorate as a whole.

          So, yeah, I agree that the Constitution says fish-all about hardball politics and using the judiciary as a political football. That’s within the Constitutional rules. Same thing for the U.S. Code. The question is really one of norms — of informal understandings of what constitutes acceptable behavior within a divided government and a two-party political system.Report

          • Avatar Aaron David says:

            Well said @burt-likko

            I think that where I differ in opinion is the concept of Norm. As I show above, the R’s were acting within the established norms when they filibustered all the lower court justices. But they were doing so in a manor that was not the expectation of that norm. And so norms break down.

            When we fall back on needing norms and such, we set ourselves up for a trap, politically. Thus there being nothing other that the constitution, unless something is made into a specific law. Which aren’t norms.Report

            • Avatar Nevermoor says:


              Historically as-in-early-USA, there was no filibuster because Aaron Burr hadn’t yet effed up the rules. Afterwards there was no filibuster because people didn’t know he effed up the rules. Then there was no filibuster except on laws seeking to promote racial justice.

              Then the GOP started really using them during the Clinton years, which led to further escalations, and now they’re routine and the senate is basically a 60-vote shop.Report

  5. Avatar pillsy says:

    If we’re going to amend the Constitution, there are better amendments to reduce the tensions around the Court (like a single term of specified length for Justices). I’m pretty sure the Senate can’t dictate when the President nominates someone, they can just decide when to provide advice and consent.

    If we’re not going to amend the Constitution, the rule isn’t going to actually do any good, because a Senate majority can always go nuclear on it.Report

    • Avatar Burt Likko says:

      To clarify: I propose this as an amendment to the parliamentary Rules of the Senate, not as an amendment to the Constitution.Report

      • Avatar pillsy says:

        Sure, but then it goes up in smoke the next time a majority feels it’s justified in making it go up in smoke.

        I don’t think there’s an extra-constitutional solution to this particular issue, which IMO is more a symptom of the politicization and perceived partisanship of the Court than it is the cause.Report

  6. Avatar Saul Degraw says:

    I am against your modest proposal for the reasons mentioned above. It rewards McConnell’s cynicism and what the GOP did to Garland. While it seems neutral in theory, in practice it would probably just end up disadvantaging the Democratic Party and their nominees, and as others have pointed out McConnell already said no.

    The GOP has become a very decadent and cynical party that it is dedicated to power alone for the sake of power and/or because they believe in their ideology despite it being against the popular will. Look at how they are not chastised by what happened with their health care policy.

    Not sure what changes this but a suicide pact for the Democratic Party is not the answer. I see your proposal as asking the Democratic Party to go into a fetal position with a “please don’t kick me” sign to their back.Report

    • Avatar Murali says:

      Power for the sake of power and power for the sake of ideology (despite democratic resistance) are two different things.

      The first is obviously amoral while the second is completely understandable. If your ideology tells you that X is just. It seems morally confused to let something like the fact that lots of people disagree with you get in the way of Doing The Right Thing. It may be mistaken, but it is not obviously so.Report

  7. Avatar Marchmaine says:

    This isn’t so much a rule as a face-saving offer… its a reasonable offer to make or accept under the circumstances. Doesn’t even have to be a permanent rule, just an agreement for 2020.

    Strikes me as something the Democrats should publicly put on the table as part of their filibuster plan (have they?) to try to improve their optics on the matter.

    This way they can stake a position of “fairness” which resonates among Americans, and shifts the obstinacy from them to McConnell… he could make this all go away with one concession to fairness.Report

    • Avatar trizzlor says:

      The problem is this: the Democrats see themselves as the hostage negotiator to a GOP that just shot a high value hostage, so further good faith negotiation is impossible; the Republicans see themselves as the hostage negotiator who just tricked the Democrats into releasing a high value hostage, they’re hoping to try the same trick again if need be and they certainly have no intention of giving the hostage back.Report

      • Avatar Marchmaine says:

        I appreciate the analogy; but calling the Republican controlled Presidency, Congress, and Senate a hostage is possibly obscuring more than it reveals.Report

        • Avatar Marchmaine says:

          Taker… a Hostage Taker. That would imply that the Democrats have all the exits covered and there’s no escape. Sorry, dashed that off as I was heading out to a meeting.Report

  8. Avatar Aaron David says:

    “The Senate, however, is not functioning properly.”

    I disagree. The Senate is functioning absolutely perfectly. It is an equal branch of gov’t, and has acted as such. Everyone of the Senators in the body has full political legitimacy, on the exact level as the president. And as we have seen, presidents such as FDR have tried court packing in the past. It is the Senates job to to represent the states in our republic, not to bow down to any president and their wish to place judges on the court. If the court doesn’t want to accept nominations at any time, they are within constitutional bounds. Just the same as if they rubber stamp a nomination if they feel that represents their constituents best.

    Full Stop.

    If there is lively discussion in the chamber, then there is discussion. If that stops bills going through, then those bills were flawed from a political point of view.. And make no mistake, the Senate (like the house and the presidency) is a political institution. And acts as such.

    What you are suggesting is to take away the politics of a political situation and replace them with law, informal or formal. That is wrong, as issues such as this are always going to be political in nature. And if the populous isn’t allowed its say, we are no longer a gov’t of the people.

    There is a way to resolve these issues, the ballot box. If the Senate wants, or doesn’t want, to handle business you feel is pressing, that is up to them. And if you want to change that, get the vote out. Convince the voters that you are better equipped to deal with issues, that you have a better plan. And as we just had an election, we now how the voters feel, no?

    Much like the house shutting down the gov’t over a budget it didn’t like, it was rewarded for its actions. As some one once said “Elections have consequences, and at the end of the day, I won.”Report

  9. Avatar Michael Cain says:

    Do you think you could get it passed? IIRC, it requires 67 votes to close debate on proposed changes to the rules of the Senate. That’s part of the reason the Senate has so many precedents — it’s much harder to change the rules than to get an exception.Report

    • Avatar Doctor Jay says:

      I don’t get this. How could the filibuster be abolished if it takes 67 votes to change the rules of the Senate? Republicans don’t even have 60 votes.Report

      • Avatar Michael Cain says:

        In addition to its rules, the Senate has precedents — basically, exceptions to the rules. An exception — or an exception to an exception, ad infinitum — requires only a majority vote. There are quite literally thousands of them. The Senate regularly calls on its parliamentarian to determine if something fits within the rules as modified by precedents.Report

        • Avatar Kimmi says:

          I thought only Bernie had to call on the parlimentarian. Everyone else has access to the rulebook (one for the Dems and one for the Republicans).Report

          • Avatar Michael Cain says:

            I’m sure the Senate parliamentarian gets called on regularly, it’s just usually not front page news.

            Both chambers of the Colorado legislature call on their parliamentarian-equivalents regularly, even though the rules for the Colorado House and Senate are much simpler than Congress’s rules. Not that Colorado’s are particularly simple. Some are embedded in the state constitution, some in statute, some in state supreme court decisions, some in the joint rules, and some in the chamber-specific rules. Some of the major committees have their own additional rules.Report

  10. Avatar Tod Kelly says:

    I don’t know if anyone has addressed this yet, but I’m unsure how this would change the landscape. This is an arbitrary rule change which would be made by the majority party in a way that would have zero negative effects to them, and which would retroactively justify a previous bad faith move. Which might be alright, I guess, except that any majority party will be able to simply dispose of the rule should a vacancy open up after the newly set cut-off date.

    The problem isn’t the Senate rules, so I don’t know that tweaking those rules does anything. The only way I see this being fixed is if the Democrats confirm either Gorsuch or some other appointee prior to the midterms, and are then rewarded for the move at the ballot box. Otherwise, I don’t see how anyone is motivated to do anything but further break the Senate.Report

    • Avatar PD Shaw says:

      Senate rules would require 67 votes, so it would have to be bipartisan. Yes, the majority could use the nuclear option to blow up the rule, but I understand Burt is offering this as a better-than-the-alternative of eliminating the filibuster. The groups most interested in maintaining supermajority voting protections are the moderates, so they would be the ones expected to police it.Report

  11. Avatar Kazzy says:

    What’s the response if the GOP goes nuclear over the *threat* of a filibuster and when votes are counted, all Dems vote in favor of Gorsuch?

    Weird game of chicken…Report

  12. Avatar Dark Matter says:

    The filibuster rule ideally serves as a way of requiring broad political consensus, beyond partisan majorities, on important matters and there are precious few more important things on the Senate’s plate than the constituency of the Supreme Court.

    No one Trump appoints is going to have “broad political consensus”.

    When was the last time a Supreme was filibustered? 1968? And that was over issues of bribery and/or him being simultaneously both a sitting justice and a White House staff member.

    This is a politically motivated filibuster (as opposed to a politically motivated vote against him). I’m not sure that’s ever happened. The standard, in practice, up until now, has been 51 votes, not 60.

    Make the standard 60 to require political consensus and I don’t think any of the current Supremes would have made it on the court. Now maybe that’s a good thing, but it’s certainly very different than what we’ve been doing.Report

    • Make the standard 60 to require political consensus and I don’t think any of the current Supremes would have made it on the court.

      Roberts 78–22
      Thomas 52-48
      Alito 58-42
      Kennedy 97-0
      Ginsberg 96-3
      Breyer 87-9
      Sotomayor 68-31
      Kagan 63-37

      All but the sexual harasser and the guy who would say anything to anyone to advance,Report

      • Avatar Dark Matter says:

        All but the sexual harasser and the guy who would say anything to anyone to advance,

        That kind of misses the point. A filibuster stops outright Thomas and Alito. Roberts, Sotomayor, & Kagan *should* have been filibustered because they’re clearly not representing anything like a political consensus, and given the other side voting in lockstep they don’t get in.

        Ginsberg and Breyer… are both liberals put in there by Clinton, but I don’t remember who was controlling the Senate, by what margin, and how extreme they hit the radar. I think the Senate just looked into how competent they were, not how liberal. Under the rules the Dems are trying to claim are now normal, I doubt they get in.

        Kennedy was a compromise candidate made to go through a Senate controlled by the other team so he would have made it.

        So I guess I can’t say none of them make it.Report

  13. Avatar NoPublic says:

    When was the last time a Republican controlled Senate confirmed a Democratic president’s nominee?Report

    • Avatar Burt Likko says:

      That would be in 1932, when FDR nominated Benjamin Cardozo. The Republicans had a one-vote majority.Report

      • Avatar NoPublic says:

        But they didn’t have 60 then, did they? Majority but not control. I’m just wondering if it’s ever happened, but not bored enough to wander through Wikipedia to figure it out so I thought someone might know. I don’t honestly know if it’s happened the other way but I feel like I remember it had.Report

      • Avatar PD Shaw says:

        Cardozo was nominated by Hoover. It is one of the few, if any, times that a President nominated a Justice who was a member of the opposing party.Report

        • Avatar Burt Likko says:

          Ah, jeez, you’re right.

          Digging through the tables, it looks like the right answer is Chief Justice Melville Fuller, nominated by Democrat Grover Cleveland and confirmed by a 41-20 vote on July 20, 1888 by a Senate made up of 39 Republicans and 37 Democrats.

          But before we go too far with the “Republicans have always been bad,” it’s also a matter of opportunity and chance. It’s amazing to me but as it happens, Democratic Presidents seem to have always had Democratic majorities in the Senate when SCOTUS vacancies have come up since then … until 2016, that is.

          And many, many Republican Senators have voted in favor of Democratic nominees to SCOTUS over the years; all four of the incumbent members of the Court nominated by either Clinton or Obama received votes from Republican Senators.Report

          • Avatar PD Shaw says:

            I also didn’t realize Brennan was a Democrat as well; I just assumed he was another Rockefeller-type Republican like Warren. Republicans are saints. I’m not sure how useful it is to go back too far for a lot of reasons, particularly the approach to empty seats was different, political in a different way.

            To me the main question is what would Trump do if he only needs 51 votes, does the window shift and people like Justices Christie and Giuliani become more possible?Report

  14. Avatar Kolohe says:

    The people had an opportunity to express their displeasure at the US Senate’s treatment of Merrick Garland in 2016, and their response was to re-elect Ron Johnson and Pat Toomey, and between 3 and 5 other Republicans on the bubble in either re-elects or open seats previous held by the GOP.Report

    • Avatar Kazzy says:

      No because the Senate is not elected by the entire populace. 34 Senate seats were up for election. The residents of 16 states had zero say in the matter.

      Furthermore, as a NYer, what could I have done about Johnson, Toomey, et al.?Report

      • Avatar Dark Matter says:

        Furthermore, as a NYer, what could I have done about Johnson, Toomey, et al.?

        Vote for HRC.Report

      • Avatar Kimmi says:

        Canvassed. Voted for Bernie (with Bernie at the top of the ticket, I’d have had less qualms with voting against Toomey, as Bernie was going after the Democrat gravy train in a MAJOR way).Report

      • Avatar Kolohe says:

        Money and/or time given to those in Pennsylvania and Wisconsin and Missouri and Florida and the rest of the bubble that were up.

        Electoral politics is a team sport. The people spoke louder on North Carolina HB2 than they did on Merrick Garland’s nomination by defeating Pat McCory in his attempt to get re-elected North Carolina governor.Report

    • Avatar Kimmi says:

      Speaking as a Pennsylvanian, I didn’t like the blatant voterigging of the primary. I’d have voted for Sestak. Hell, I’d even have voted for the mayor of Braddock, and he’s a person my husband won’t go to hear speak, for the likelihood of him doing something inexplicably violent.

      And I hate Toomey.

      I’m all on board with the Democrats doing as much as they can to stop this nomination from going through (getting rid of the filibuster is progress, as it was handicapping the dems and not the Republicans). But, really? It’s not going to change anything.

      And if, in the 50% of the time Trump only lasts two years, he won’t get another appointment.Report

  15. Avatar Stillwater says:

    Josh Marshall has in interesting take on filibuster/nuclear option kerflufle:

    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.

    An agreement the GOP violated when it engaged in a procedural filibuster by denying Garland a hearing.

    If correct, it answers a lingering question re: why McConnell chose the radical and politically dicey path of blocking hearings rather filibustering a floor vote. The other thing, obvs, is that Democrats feel like the GOP broke their promise re: respecting procedure, hence, their insistence on filibustering the R nominee this time around.


    • Avatar trizzlor says:

      Huh? McConnell was the majority leader, there was no reason to filibuster since he already had the votes. I think the reason they chose not to have a floor vote was that (a) it took pressure off some Republicans by not requiring them to go on record denying a popular president the advice and consent process; (b) as we see with Gorsuch, SCOTUS nominees tend to be smart people that look good on TV and the hearings would have served as a week-long negative ad against what McConnell was doing. This is also the reason I found McConnell’s approach so frustrating and anti-democratic. I have no expectation that a GOP majority should approve the nominee. But if they’re taking an oppositional stand they should OWN it: go on record with votes and hearings and explain to the American people why you’re obstructing!

      The way Congress is able to hide it’s actions by acting in committee or pulling from the off the floor is, IMHO, a seriously under-appreciated problem. As a voter, instead of petitioning your local Congressman about the vote they had, your only redress is to change the committee leadership by sweeping the *entire party* out of power – and that is if you are even aware of what’s going on at all.Report

      • Avatar pillsy says:


        The GOP wants to play hardball by voting down Garland, sure, fine, they have that power.

        But not having hearings to avoid some lousy optics when Garland (inevitably) looked good was seriously obnoxious.Report

        • Avatar Stillwater says:

          The GOP wants to play hardball by voting down Garland, sure, fine, they have that power.

          But NOT, according to Marshall’s premise, the power to filibuster Garland’s vote. History (Sotomayor, Kagan) suggests he would have received enough GOP votes for confirmation.Report

          • Avatar pillsy says:

            I think that’s the case.

            Also, I doubt the majority is going to go through the formal process of using the nuclear option to eliminate the filibuster in response to something done by ~75% of the majority caucus.Report

        • Avatar Stillwater says:

          But not having hearings to avoid some lousy optics when Garland (inevitably) looked good was seriously obnoxious.

          Well, that’s exactly the issue I’ve puzzled over since McConnell jumped in front of a microphone before Scalia’s body was cold to say he’d obstruct the hearing process. That optics of that move were absolutely terrible. So the question is: why did he choose to make that move when the political risk was so obvious and apparent? And in answer, lots of us have held the belief that the better strategy for the GOP woulda been to hold hearings then rally the troops to support the final vote filibuster. Marshall is providing an account of why that move wasn’t an option: the GOP had previously agreed to never use the filibuster for SC nominees. So the only way to ensure that Garland didn’t get confirmed was to never let him outa committee by denying him hearings.Report

          • Avatar pillsy says:

            Ah now I parse.

            Then yes, that might be, if McConnell felt he couldn’t whip his caucus to get 51 votes to block, or that the costs of doing so would be too high for Purple and Blue State Rs.Report

          • Avatar Jesse says:

            It was bad optics to the 19 of us paying attention to whether or not a SC Justice got a hearing. Out of sight, out of mind.

            To your average swing voter, it’s an open question whether they remembered or knew Scalia had died at the time of the election. OTOH, a SC Justice of a popular POTUS being voted down in the fall would remind swing Trump-curious voters or possible Democratic non-voters why they don’t like Republican’s and thus, vote for Hillary begrudgingly and more importantly, vote for Feingold and other Democratic Senate candidates.

            I also think in a Hillary vs. Rubio election, the SC seat would’ve been a bigger deal since there wouldn’t be a new weird Trump story a day.Report

          • Avatar Dark Matter says:

            McConnell’s choices were…

            1) Hold a vote, let Garland get on the court.

            He’ll be helping Obama shift the court from Right leaning to Left leaning. This probably throws the Presidential election because the base will rightfully see it as a betrayal. It probably also throws a large number of GOP congressmen out of power. It certainly costs him his job.

            Unless he’s planning on switching parties or retiring this doesn’t seem like a reasonable option.

            2) Hold a vote, stop Garland by voting him down.

            Chances of success are hard to predict but less than 100%. Garland is qualified and tele-charismatic and he’ll have the backing of the press. If McConnell can’t keep all of his troops in line then he’s looking at a lot of the problems from above. Keeping the troops in line is hard.

            And this would be really, really, nasty. To provide political cover, the GOP would try to destroy Garland. No more “he’s a nice guy but…”. Instead they’ll do what the Dems are doing now and lie about who he is, what he is, what he’s done, and so forth. Ideally they’ll find some woman or man or child to say he sexually harassed or even raped them.

            Trying to claim this is the nicer or cleaner option is just not dealing with reality. It’s probably also *impossible* because of #3 below.

            3) Hold a vote and filibuster Garland.

            The Senate has never filibustered a qualified candidate before and the GOP had made promises that it wouldn’t. This also has a lot of the problems of various other proposals above.

            And he probably didn’t have a choice but to do this if it got that far. Some of his troops *would* have done this, with or without his blessing.

            4) Prevent any vote on anyone.

            The optics are bad but many of the alternatives are worse. The chance of success was 100% because it was something he could do himself. This also somewhat shifts blame from vulnerable GOP members to himself

            There are worse solutions than putting the choice to the people. This also has the strength of keeping his group together. IMHO it’s also a lot cleaner than trying to destroy Garland, it’s owning what you’re doing and why.

            Notice this could have blown up on him. At various points in the election, the Senate was thought to be in play and at most points HRC was viewed at the assumed winner. IMHO the people upset with what happened would NOT be upset if the Senate had flipped, HRC had been elected, and someone a lot more Left than Garland were in line to be confirmed.Report

            • Avatar Troublesome Frog says:

              I agree 100% with the political calculus in this comment. I don’t think we would agree on whether it paints McConnell in a particularly good light, but politicians can typically be trusted to do the politician thing.Report

              • Avatar Dark Matter says:


                Thank you.

                I don’t think we would agree on whether it paints McConnell in a particularly good light…

                Since we had Biden walk us through the expected political actions in this situation about 15 years ago, the political logic goes back a lot further than McConnell.

                And everyone directly involved is a professional, and knew their role in this dance. Obama/Biden/etc knew the situation the GOP was in (and if they didn’t, McConnell told them the first day).

                Obama’s job was to make it as painful as possible. I’m surprised he didn’t nominate a minority. If he’d been serious about putting someone on the SC he could have nominated a very moderate Republican judge (given who he was replacing, it’d still be a leftward swing… although I suppose Garland could be something close to that).

                In any case most or all of this *outrage* by the professionals was show. McConnell had pretty much *zero* choice here.

                And for that matter, McConnell had no choice but to go nuclear. The alternative to nuclear was Trump doesn’t get to nominate Justices because he’s Trump; And Trump is expected to nominate someone who will swing the court to the Left because the Dems are unhappy they weren’t able to swing the court to the Left.

                That’s why the filibuster has survived so long for the SC. Not because it was useful, but because it wasn’t. The first time it was used for crass political reasons would also be the last time it was used at all.Report

              • Avatar Murali says:

                Obama could have nominated Srinivasan.Report

              • Avatar notme says:

                Sure, then the dems could have said that the repubs were racist. Never pass up a chance to play the race card, right?Report

              • Avatar Murali says:

                Why waste the opportunity when the republicans make themselves look bad?Report

              • Avatar notme says:

                Why waste the opportunity when the republicans make themselves look bad?

                Look bad to whom? I’m quite happy with them.Report

              • Avatar Dark Matter says:

                Could and probably should. Having said that, serious, professional people operating inside their supposed area of competence spent a lot of time on this and what they came up with was Garland.

                1) Srinivasan is being held in reserve and is a serious SC pick. Garland is just a sacrifice since the GOP can’t move on this.
                2) HRC is going to win and appoint someone, putting her in a situation where she needs to insult Srinivasan by appointing someone else is a bad idea.
                3) Garland is the “compromise” guy and inside baseball says he’s got a better chance.
                4) Srinivasan isn’t available for some reason (skeleton in the closet).
                5) The GOP not appointing Garland is somehow worse than not appointing Srinivasan (one swing state?)
                6) Screw up. Obamacare website act 2Report

      • Avatar Stillwater says:

        I think the reason they chose not to have a floor vote was that (a) it took pressure off some Republicans by not requiring them to go on record denying a popular president the advice and consent process

        I think the floor vote woulda gone for Garland, myself: enough GOPers were on record as praising Garland and/or voting for qualified Dem nominees in the past, but who knows?Report

    • Avatar Jesse says:

      I think for politically vulnerable Senator’s like Toomey, Johnson, Ayotte, etc., never having to vote against a qualified SC Justice is better than having it on the record in 2016.Report

    • Avatar Saul Degraw says:


      McConnell is probably among the most astute cynics and chutzpah holders in politics. Perhaps there are just different rules for Democrats and it sucks and it is something we have to deal with.

      I find it funny when conservatives scream about a liberal bias in the media and then go to LGM or speak to my liberal friends and the view is that “BSDI” or appeals to bi-partisanship are basically the equivalent of getting yelled at for the actions of your ne’r do well brother but no one ever tells the brother to clean up his act and stop hot wiring cars while drunk.Report

      • Avatar Burt Likko says:

        That’s a weirdly specific similitude. Is there some sort of personal story you’d like to share with the group, @saul-degraw ?Report

      • Avatar Aaron David says:

        “Perhaps there are just different rules for Democrats and it sucks and it is something we have to deal with.”

        There absolutely is, and it has to do with perceptions regarding change vs. the status quo. And, yes it does suck.Report

      • Avatar Jaybird says:

        The media is liberal, but it’s structurally liberal.

        It’s all well and good to ask “who’s liberal?” and crow in triumph when nobody can point to a particularly liberal person. Indeed, these people have friends and co-workers who are conservative. Their kids go to school with conservatives.

        But structural liberalism shouldn’t be confused with liberalism and saying “Nobody is liberal, not to the point where it changes their behavior, anyway” misses the point of how structural liberalism works.

        Of course, it is difficult to get a man to understand something, when his salary depends upon his not understanding it.Report

  16. I don’t understand why this proposed rule is even a response, safer or not, to the Gorsuch nomination and Dems’ threat to filibuster. This isn’t a presidential year and Gorsuch has already been nominated. Why would a Dem say, “well, if we pass this rule, then Mr. Trump can’t nominate anyone between February 24, 2020 and the election that year, there I don’t want to filibuster now in 2017”?

    Maybe I’m missing something? Is there a context here I don’t see?Report

    • Avatar Burt Likko says:

      In exchange, Democrats don’t obstruct a vote on Gorsuch’s nomination, because he’s merely conservative, not truly awful. Some measure of “fairness” is restored. Not the “fairness” we’d prefer, but at least the way Garland was treated is made to cut both ways.

      Liberals are going to have to eat a shit sandwich no matter what here. This is to avoid having to dip it in shit sauce, too. As it stands, now that it looks like Schumer and McConnell both prefer confrontation, the ability of the Democrats to later impose a filibuster on a truly awful judicial nominee — say, Rudy Giuliani or Chris Christie — will not be there later when they need it.Report

      • Avatar Jaybird says:

        I agree so much with this that it hurts.

        The Democratic base (or a very vocal component of it, anyway) seems to be calling for brute force opposition as a show of good faith.

        This is a crappy position for the Democratic pols to be in.Report

      • Avatar Autolukos says:

        The whole premise of the last sentence (that there exists a nominee who would get 51 votes to confirm but not to kill the filibuster) is a fiction. Democrats had nothing to lose and a good quarter of fundraising to gain.Report

        • Avatar pillsy says:

          Also, the idea that, at this point, which nominee is supposed to scare me more than Gorsuch does. After Shelby County, I just assume that anyone a Republican nominates to the Supreme Court is just going to be irredeemably bad.Report

          • Avatar Troublesome Frog says:

            I’ll repeat what I’ve said elsewhere: Given Trump’s indifference to competence, tendency toward cronyism and nepotism, and his history of surrounding himself with the worst types of people, I consider Gorsuch a win and hope that Trump continues to appoint people like him if he has any more openings to fill. As long as he lets his staff handle the appointments and finds more reliably conservative but otherwise qualified and intellectually consistent justices, I think that’s the best we can ask for.

            The fact that he didn’t just nominate somebody with a room-temperature IQ and absolutely no shame or principles to support his personal and family interests is a win. I was bracing myself and waiting to hear that he nominated the president of that most august and storied of institutions, Trump University.Report

            • Avatar trizzlor says:

              I saw this somewhere that the SCOTUS appointment is both the decision where dems have the least power, and the decision that’s the least Trumpy.Report

            • Avatar pillsy says:

              I don’t see why such a person would get confirmed any more easily than Harriet Miers was. She was shot down by Rs, not Ds, after all.

              I guess we’re supposed to be afraid he nominates Cruz or somebody, but I really don’t see what would separate Cruz from any other Federalist Society-approved Scalia ghola beyond a conspicuous lack of charm.Report

              • Avatar Troublesome Frog says:

                Miers was a while ago, though, and things have clearly gone downhill since then. And it sounds like the anti-abortion wing had something to say about Miers. All a Trumpist would have to do to get them onboard is to explicitly promise to overturn Roe.

                Trump is burning political capital pretty fast, so it’s likely that the danger of him doing something really crazy and getting away with it is dropping, but right now I have zero faith that the Republican majority would have the guts to stand up to a crazy appointment if they thought that Trump’s base would punish them for it.

                We’re in the middle of some legitimately unsettling stuff with Russia that would be investigated to death under any other circumstances, and the Republicans seem to be perfectly happy to do whatever they can to smother any investigation in its crib. Since the primaries, every time it seemed like prominent members of the party were going to stand up to Trump, it ended with them knuckling under and enabling him. The only reason they failed to pass that lousy healthcare law was because they couldn’t agree on which lousy ideas they wanted, not because it was lousy and unpopular. I don’t know how much longer the honeymoon will last before even the Republican leadership has to admit there might be a problem, but I’m glad that Gorsuch was the nominee during that window. Hopefully the process will draw out as Trump’s approval numbers continue to bleed.

                I’ve said elsewhere that I wouldn’t roll the dice on the Republican leadership rejecting Vladimir Putin as a Supreme Court nominee during Trump’s honeymoon. That’s an exaggeration, but not much of one.Report

              • Avatar pillsy says:

                I think Gorsuch was one of the things–if not the thing–that got the Republicans in Congress on side and kept them there. I think there’s no higher priority—not even tax cuts for the wealthy—that is a higher priority for the GOP leadership than getting ideologically palatable justices onto the Supreme Court, and it would blow up in Trump’s face really fast if he tried to put a crony like Giuliani or Napolitano there.Report

              • Avatar Kimmi says:

                I want an unbiased source on what the hell’s been going on with russia before I believe a word of it. (Which, isn’t to say that I don’t believe russia was trying to meddle.) I also want a comprehensive rundown of what Israel, Saudi Arabia, China, and everyone else of interest was doing.

                Us and Russia ain’t the only people with spies, and so far as I know, Israel and Saudi Arabia had theirs closer to the action.Report

              • Avatar Troublesome Frog says:

                Who, aside from one of the people you know with the inside scoop on everything, would you consider an unbiased source?

                My issue with everybody whining about bias is that it’s just lazy media consumption. There’s no magic Media Jesus who always tells the truth and gives out perfect information with no spin or error. Most of the time, the only way you get to the truth is to look at a bunch of information and sources and put together the most credible picture you can.

                The ties between Trump’s team and Russian interests keep popping up, the denials keep coming, and then the denials keep turning out to be totally false. So at some point, it’s hard not to see a pattern and think that the people who are spinning this as totally normal aren’t presenting an accurate picture of things.

                I’m certainly interested an any foreign conflicts of interest our leaders have, so if there’s credible evidence to support other investigations, let’s do it. But I don’t see a lot of credible evidence for those other countries. At least, not evidence of personal entanglements that present conflicts of interest. Evidence that our government policy is cynical and the official consensus is to enable bad actors? Sure. But Trump’s story seems not to be one of those cases.Report

              • Avatar Kimmi says:

                at this point, we’re looking at multiple agencies with a vested interest in a demonstrably false narrative. (In particular: that Wikileaks got its data from the Russians, rather than an “inside the DNC” leak).

                When you can’t trust the FBI or the spies, I think we’ve all got problems.

                Yes, I do happen to know someone who’s a … Private Investigator. You’d be surprised what he turns up.Report

              • Avatar Troublesome Frog says:

                In particular: that Wikileaks got its data from the Russians, rather than an “inside the DNC” leak.

                I’m interested in how you know this is demonstrably false.Report

              • Avatar Kimmi says:

                Figured that’d be obvious (I know someone @ Wikileaks).Report

              • Avatar Troublesome Frog says:

                Wow. Was he the person who did that awesome movie style cloak-and-dagger handoff of physical information in a “wooded area” instead of via their normal tor-enabled mutually-anonymous secure drop like any sane person would do?Report

              • Avatar Kimmi says:

                nope. probably the person who corroborated the leaker (who, according to Assange, is dead).Report

            • Avatar Saul Degraw says:


              I largely agree that Goresuch was a best that can be hoped for pick from Trump because even his nihilist team seems to understand the CV required of a Supreme Court pick. Under normal circumstances, I would say that he should have proceeded with some minor grilling.

              But 2016 took away the normal circumstances and what happened to Merrick Garland destroyed what remained of any good-will to the GOP. It is simply not the job the Democratic Party (elected politicians and the party faithful) to be chumps in the name of “civility” and “bipartisanship.” If we talking about Goresuch being Trump’s pick because Garland replaced Scalia and then someone else left the bench, it would be an entirely different story.Report

          • Avatar Dark Matter says:

            Also, the idea that, at this point, which nominee is supposed to scare me more than Gorsuch does.

            Presumably a nominee who didn’t have the Dems marching lockstep to *support* him the previous time they had the chance. Every single Dem in the Senate was fine with his ethics, intellect, morals, and reasoning up until it became politically convenient for them to proclaim that he’s an ax murderer.

            If you’re scared, it’s because you believe the lies you’ve been told.

            IMHO it’d be far more honest for the Dems to proclaim he’s a great guy but they’re voting against him because of their politics and not his ethics, sort of like what the GOP did with Garland.Report

            • Avatar pillsy says:

              I have no particular problem with his ethics, intellect, or morals.

              The idea that we’re just supposed to not pay any attention to the politics of a political appointee to a powerful, lifetime position, is daft, no matter what weird kabuki goes on with the Senate.Report

          • Avatar Dark Matter says:

            What about Shelby County is scary? At it’s root, what the SC said was proving your great-grandfather was a racist isn’t the same as proving you are. Everything about the voting rights act was fine except the part where they use 40+ year old data as “current”.Report

            • Avatar Michael Cain says:

              Purely speculation, but I suspect that Kennedy and Roberts both regret their decision, given that two or more states immediately turned around and treated the decision as free license to discriminate openly, and get at least a couple of elections in before the DoJ could react.Report

              • Avatar Dark Matter says:

                Purely speculation, but I suspect that Kennedy and Roberts both regret their decision, given that two or more states immediately turned around and treated the decision as free license to discriminate openly, and get at least a couple of elections in before the DoJ could react.

                So we need to assume all grandchildren of racists are racists and presumption of innocence doesn’t apply?

                Are there any other crimes and people we can constitutionally apply that to or is it just the GOP?Report

              • Avatar pillsy says:

                What presumption of innocence? The VRA (and the its pre clearance requirements) aren’t criminal punishments, and apply to governments, not individuals.Report

              • Avatar Dark Matter says:

                What presumption of innocence? The VRA (and the its pre clearance requirements) aren’t criminal punishments, and apply to governments, not individuals.

                There are no constitutional issues in voters electing people and giving them power? Seriously?

                At the end of the day you’re suggesting the agents of voters in certain places can’t be trusted to not engage in actions that won’t be unconstitutional.

                I actually agree fully with that. The part I disagree with is we can tell who from whom based on the actions of their grandparents.

                If the VRA isn’t a criminal punishment and it’s a great thing, then why not apply it everywhere?

                If it’s because the states which are covered are far more likely to abuse their power, then why not prove it with something other than 40+ year old data? Nothing has shifted in more than 4 census counts?Report

              • Avatar Dark Matter says:

                you’re suggesting the agents of voters in certain places can’t be trusted to not engage in actions that won’t be unconstitutional.

                Err… did I get the logic of that right?

                The agents of voters in certain places can be trusted to engage in actions that won’t be constitutional.

                Is what I meant.Report

              • Avatar Stillwater says:

                The agents of voters in certain places can be trusted to engage in actions that won’t be constitutional.

                Like in North Carolina?

                Post Shelby, a federal appeals court judge wrote:

                “We cannot ignore the record evidence that, because of race, the legislature enacted one of the largest restrictions of the franchise in modern North Carolina history,”Report

              • Avatar Dark Matter says:

                Sure. That’s a problem. Sometimes the grandchild really is like the grandfather.Report

              • Avatar Stillwater says:

                I guess the grandchild is like the grandfather in Texas, too.

                Federal Judge Says Texas Voter ID Law Intentionally DiscriminatesReport

              • Avatar Dark Matter says:


                I guess the grandchild is like the grandfather in Texas, too.

                Sure. Culture, even political culture, can remain stable for a long time. And I’d be shocked if some states which aren’t on the list now should be. Racial dynamics have changed a lot in 40 years, it’s even possible some places suppress the white vote.

                However updating laws after information becomes stale is the job of Congress, not the SC. If Congress still thinks this is a good idea, they can re-write the law with new thresholds, new data, etc… or they can just apply the law to everyone.

                Re-writing the law to make it work is what the SC refused to do.Report

              • Avatar pillsy says:

                There are no constitutional issues in voters electing people and giving them power? Seriously?

                There are, and they’re addressed by the 15th Amendment, which the majority effectively ignored in its ruling.

                If the VRA isn’t a criminal punishment and it’s a great thing, then why not apply it everywhere?

                It’s irrelevant.

                For years conservatives on the Court have been insisting repeatedly that the courts should defer to the elected branches of the government, especially when it comes to their enumerated powers under the Constitution, instead of judging whether policy is “good”. The fact that the VRA could, arguably, have been better from a policy standpoint is hardly a reason for the SCOTUS to strike it down.Report

              • Avatar Dark Matter says:

                The fact that the VRA could, arguably, have been better from a policy standpoint is hardly a reason for the SCOTUS to strike it down.

                The didn’t strike it down, they just ruled that you need something more recent than 40 year old data proving it’s needed (or alternatively, that it could be applied less selectively)

                So… according to you, how old can the data be? 80 years? 120? Does it matter if *no* *one* who was trying to do unconstitutional acts is still alive? How about if no one who was in power then still is?

                Can we use the old racism data from the founding fathers? Whoops. If we do that then every single state has problems and it’s just these special ones we care about.

                At what point does singling out “special” people/states for “special” treatment become unconstitutional?Report

              • Avatar pillsy says:

                The didn’t strike it down, they just ruled that you need something more recent than 40 year old data proving it’s needed (or alternatively, that it could be applied less selectively)

                Substituting the Court’s judgement for Congress’, in exactly the sort of way conservatives are always complaining is illegitimate.

                At what point does singling out “special” people/states for “special” treatment become unconstitutional?

                People are due equal treatment; states are not.Report

              • Avatar Stillwater says:

                Substituting the Court’s judgement for Congress’, in exactly the sort of way conservatives are always complaining is illegitimate.

                That’s a really good point. “Legislating from the bench!”

                Add: Of course, I know that THAT isn’t the end of the discussion. The conservatives justices who ruled as they did were privy to a deeper constitutional truth, one not necessarily written but most definitely implied.Report

            • Avatar pillsy says:

              What about Shelby County is scary?

              That it proved everything about the “originalist” conservative school of jurisprudence was a despicable lie that went out the window as soon as it was inconvenient for the partisan goals of the GOP.Report

      • Avatar pillsy says:

        Liberals simply did not trust McConnell to let the filibuster stand on a future nominee, no matter how it might swing the Court. Since we mostly hate the filibuster anyway, we’re happy to degrade it further, especially if we get McConnell’s prints on the knife.Report

      • Avatar Troublesome Frog says:

        …the ability of the Democrats to later impose a filibuster on a truly awful judicial nominee — say, Rudy Giuliani or Chris Christie — will not be there later when they need it.

        I still don’t get this. Party discipline being what it is now, the filibuster doesn’t work. In fact, we’re in the process of watching it not work. It’s a norm that can be discarded at any time, and it’s being discarded. Why all the concern for whether it’s discarded for this appointment or the next one?

        Mind you, I think the procedural filibuster does a lot more harm than good, so I’m perfectly happy to see it go, but it seems to me that we’ve moved into a state where the last bits of good faith on this topic have been burned and the fields tilled with salt. Keeping around a fake good faith agreement where the party in power pretends that it’s not going to do whatever it wants doesn’t seem like something we should be super worried about.Report

        • Avatar Troublesome Frog says:

          I will throw it out there and say I wouldn’t mind seeing a truly real filibuster still in the rule books–one that can’t be done away with without 60 votes and one that requires you to actually monopolize the floor the entire time. If somebody wants it badly enough that they’re willing to physically suffer for it, then maybe we should agree that it’s potentially a super important issue.

          The fact that it’s a push of a button to signal THIS IS SUPER IMPORTANT means that the rats in the cage have figured out that they can push that button any time they want. Which means that the pushing of the button no longer indicates that THIS IS SUPER IMPORTANT. If we make the button harder to press, it would be OK to keep.

          Also, maybe the ability to kill a bill if 3 senators are willing to cut off a finger joint, yakuza style.Report

          • Avatar Jaybird says:

            I used to agree with this until it was pointed out that the filibuster requires the opposition to have a great deal of solidarity. Like, if it’s 4AM and more than 40 senators leave the floor to catch some shut-eye, the guy filibustering can ask if there is cloture. If the guy filibustering has another guy on his side, the other guy on his side can take over reading from the legion of blogposts/tweets at his disposal (the phone book is no longer required!) supporting opposing whatever the vote would be about. You get people to leave the room for lunch, better have enough to maintain cloture…

            Which revealed to me that the filibuster was kabuki in the first place. It allows senators to say “well, I would have!” to their donors while allowing the status quo to be maintained.Report

            • Avatar pillsy says:

              It allows senators to say “well, I would have!” to their donors while allowing the status quo to be maintained.

              This, BTW, is why I’m betting that the legislative filibuster is going nowhere as long as McConnell is Majority Leader.Report

              • Avatar Troublesome Frog says:

                Absolutely not. The Republicans have made so many promises that they can’t possibly keep that the filibuster is the only thing protecting them from the checks they’ve written. A bunch of symbolic “eliminate all welfare programs and cut taxes to zero” votes are great optics when you’re in the minority, but once you actually have the power to act, people are going to start asking why you don’t follow through.

                As long as they keep the legislative filibuster, they can continue to rely on the Democrats to put the brakes on insane political posturing and take the political hit for it.Report

              • Avatar DavidTC says:

                As long as they keep the legislative filibuster, they can continue to rely on the Democrats to put the brakes on insane political posturing and take the political hit for it.

                This is why *I* keep suggesting the best thing for the Senate Democrats would be to say ‘If you allow us to propose a reasonable number of amendments, let’s say two per member, we will not filibuster. We may not *vote* for it, but we will not filibuster. This can generally be assumed to apply unless we state otherwise in advance, it is now the *default*.’

                And then, with every bill, the Democratic leadership makes a choice: If it’s a reasonablish right-wing bill, say, ‘Nope, we’re filibustering’. If it’s, say, the *wall*, or something equally insane, they instead say ‘Sounds like a really stupid plan, but we’re not filibustering.’

                I.e., the calculus should be the opposite of what people expect. What’s more, they need to make it *very clear* to the press that certain absurd things that the Republicans have proposed *will not be filibustered*.

                I suggested this happen with the CA repeal, that the Democrats should not try to filibuster it and let the Republicans blow it up…and instead the Republicans figured out a path around the filibuster themselves…and, then as I knew they would, blew it up.

                I feel rather vindicated. It happened exactly like I thought it would even though the Democrats didn’t do what I wanted. Hell, it *happened in the House*, which I didn’t expect!

                So let’s *keep doing that*. On *purpose*. Let’s set up *all* completely stupid bills that way. ‘Oh, sure, you guys go ahead and pass that bill removing funding from Planned Parenthood. Have fun.’

                I just want the Democrats to hand them an anvil and watch them *either* pass their incredibly unpopular stuff, (And get voted out next cycle, allowing the Democrats to actually being real investigations of Trump, crippling them further) or, as we’ve seen with the ACA, have the moderate members look around nervously and start edging towards the exits.

                ‘What do you mean *we’re* stopping the Republicans from getting the bill passed? We’re letting the Republicans vote on it…it’s *them* who won’t vote for it. Perhaps they need some *even farther* right primary challenges!’

                Worse case scenario, if one of those absurd bills comes close to the passing, and it’s bad enough and too damaging to wait to correct, the Democrats…defect at the last second and filibuster it *there*, using some sort of gibberish reason about the bill being worse than expected or the Republicans didn’t allow enough votes or something. Yeah, it’s bad faith, but, at this point, fuck acting in good faith. The Republicans in Congress certainly aren’t.Report

            • Avatar Troublesome Frog says:

              Unless I’m mistaken and the rules have been changed back, that’s no longer the case. The Senate is allowed to do other business during a filibuster, so a filibuster is not a marathon holding of the floor anymore so much as, “We’re filibustering this. Are there 60 votes? No? OK, let’s move on to other things until you guys get 60 votes.”

              It used to mean that you held the floor and nothing at all got done, so it was a serious sacrifice and signal that what you were doing was important enough to derail the whole machine. Now you can be “filibustering” and chewing bubble gum at the same time, so it really doesn’t have the same meaning.

              I’m still thinking we need to go to the fingertip veto.Report

              • Avatar Jaybird says:

                Damn millennial senators.Report

              • Avatar Troublesome Frog says:

                Always wanting to get all the filibuster rewards without putting in any of the filibuster work.

                In my day, you had to pee your pants to keep it going, and we didn’t have those fancy moisture wicking fabrics they sell to you snowflakes these days.Report

            • Avatar gregiank says:

              It allows them to stop something without having to take a very public and open stance that could come back to hurt them. I actually think the very public filibuster option is probably a good thing to have. If you want to obstruct you need to do it loudly and publicly so that you have the negative consequences of the stance. Just being able to quietly stop things through bureaucratic measures is to low cost. A filibuster should be a thing but not an easy or common thing.Report

              • Avatar Jaybird says:

                By making it more costly, they make it more valuable.

                I like it.

                One of the few things that actually works that way.

                So, sure. We should go back to that. And if the senator speaks until he is hoarse and can no longer continue, he’d better have a guy who will step up on his behalf or prepare for Official Discussion to end.

                Going back to a vote of 60 to agree that “there’s been enough discussion to vote on this” would probably provide better optics.

                And would clarify a handful of things, I guess. Is this issue important enough that we’re willing to derail the machine and get nothing else done until people are done speechifying? If not, well, the vote to “table this until Friday” will easily pass.Report

          • Avatar Dark Matter says:

            *Everyone*, on both sides, agrees that the SC is super important.

            If we allow the filibuster in this situation then we’re going to end up with a bunch of no-history cyphers that no one can object to because no one knows how they’ll rule.

            We probably want the SC to have brilliant legal minds.

            One of the big reasons why the SC is important is Congress isn’t doing it’s job. Congress is handing off poorly written laws filled with conflicting statements and just hoping judges make it work. Similarly Congress is punting on various social issues and so forth.

            So we end up with the SC being an arm of Congress.

            Long term I hope we push a ton of policy back to the States. Enough of them tried gay marriage that it became a lot less scary. Abortion was headed that way and might be a lot less poisonous if the SC hadn’t stepped in. Also States can try things, blow up their budgets or prove they work, without risking the dollar.Report

      • Thanks for explaining, Burt. I’m not sure it would work in the way you suggest, but at least now I understand the argument.

        For me, I’d be happy if we did away with the filibuster for court nominees. It would suck for my policies preferences in the short term, but it might be better in the longer term. (I also realize that it’s easy for me to say that. What for me are “policy preferences” are for others issues of great and immediate personal important.)Report

        • Avatar PD Shaw says:

          For me, the point is rather Trump specific. There are two requirements in the system of judicial nomination: Presidents nominate and the Senate votes on the nomination. When the President is Trump, the possible outcomes are wider than simply an ideologue.

          The Senate has decided that 50 votes will be required to approve a nomination, not 60. This shifts more power to Trump. We might try to quantify that as Trump’s power position has increased by 10% or so. He has more room to maneuver, not carte blanche, but a better tactical position. I just really don’t think this was the time.Report

  17. Avatar Stillwater says:

    Gorsuch filibustered. Eff it, let’s do it live!


    • Avatar Stillwater says:

      Personally, I cant see McCain, Collins and Graham votin to go nuclear. Nagahapa.Report

      • Avatar pillsy says:

        For Gorsuch? I bet they do.

        For a future potential nuking of the legislative filibuster? They’ll stay the fuck away.

        It’ll take a Dem majority to kill that one, but I’m pretty sure it will be killed, unless the majority flinches now.Report

        • Avatar Stillwater says:

          Voting happening right now! (Pins and needles…)Report

        • Avatar Jaybird says:

          It strikes me as likely that the filibuster ought to have been saved on the off-chance that the Notorious R.B.G. retired/passed because *THAT* seat is one that could have been defended with it.

          But, hey. Maybe she will last until Trump gets impeached or fails to get re-elected in 2020.Report

          • Avatar pillsy says:

            I really don’t think it could have been defended in any case. The GOP position is, at least implicitly, that the Court must move right at every opportunity. In any event, no way were the Dems going to trust McConnell on this after Garland.

            I think the filibuster is bad and the Dems should have forced the issue in ’06 with Alito, so you won’t see me crying.Report

          • Avatar trizzlor says:

            There’s no evidence that anything would stop the GOP from moving the court right-ward, BUT I do think the RBG optics would have been better and Democrats could have extracted a greater political cost. The upside of the current maneuver is (1) a shoot the moon effort to mobilize the base and get the Senate back, which is the only *real* way to box out SCOTUS; (2) setting the scene for President Gillibrand to pack Merrick Garland onto the court in 2020.Report

          • Avatar gregiank says:

            The belief that somehow, someway the R’s would not do whatever they want if they get to fill RBG’s seat seems naive. Do you really think if the filibuster was saved the R’s would be all nice and cooperative about filling the next vacancy. Do you not even remember that Garland guy? The filibuster would not prevent much of anything in the future.

            For the official record i don’t know, nor have i thought much about the politics of this current play against Gorsuch. I just know the D’s can’t stop him.Report

            • Avatar Jaybird says:

              Do you really think if the filibuster was saved the R’s would be all nice and cooperative about filling the next vacancy?


              But I think that a Borking variant might have worked on behalf of the venerable tradition of keeping the filibuster. (Not would… but might.)

              I mean, if there were an election coming up and Republicans were sweating about getting primaried and/or not re-elected.Report

              • Avatar gregiank says:

                Umm yeah Bork…whatever. So you agree the R’s would do whatever they want. It’s not like they can’t find respectable conservative judges to fill the spot. The R’s that were very much against Bork way back when are almost all gone. It’s a different R party now.Report

              • Avatar gregiank says:

                Yeah so. We didn’t get to today out of nowhere. This has been a process going on for a while. One quick and easy read of all this is that R’s were fine and happy to use the Fbuster when it suited them but don’t like when applied to their peeps.Report

      • Avatar Burt Likko says:

        McCain thinks the nuclear option is a bad idea that Republicans will come to regret. But that’s not going to stop him from voting for it anyway.Report

  18. Avatar Autolukos says:

    Glad to hear that DC was nuked. The wife has never been, and now that the climate has improved I might be convinced to visit again.Report

    • Avatar pillsy says:

      Yeah. Honestly I think I’m seeing more Rs upset about this than Ds at the moment.

      I mean I personally hate the $#%! filibuster. It’s so bad I have to swear about it in Perl.Report

      • Avatar Jesse says:

        Yeah, I want the Senate destroyed. Making the Senate closer to a majoritarian institution is a good thing in my view, even if we have some pain now.

        Worst case scenario, we pack the Court. Since swing voters no longer exist and more importantly, nobody outside of partisans care or knows anything about the Supreme Court, it’s not the worst long term plan.

        Especially if it turns out the Russians were involved and we can reasonably claim anybody appointed by Trump is a stolen seat.Report

        • Avatar Kimmi says:

          Why, WHY do people keep on assuming that the Russians are doing anything out of the ordinary? In fact, the reason they keep making the news is that they’re substantially less competent than other agencies.Report

          • Avatar Troublesome Frog says:

            What do you mean “out of the ordinary” in this context? I’m sure every intelligence agency in the world would love to have friendlies with close personal ties to them in positions of power in the White House, and I’m sure they’re constantly trying make that happen. What seems out of the ordinary here is the extent to which the Russians appear to have succeeded this time around.

            I’d argue that the Russians are in the news not because they’re less competent at it but rather because the people they’ve attached themselves to aren’t particularly competent. The people who keep getting caught in lies and sketchy positions are the ones on this side of the fence, not the ones they’re weirdly close to.Report

            • Avatar Kimmi says:

              Okay, I’ll grant you the point that the Russians aren’t dealing with the terribly competent.

              In Clinton’s camp alone, we have extremely highly placed Israeli and Saudi spies. There’s a senator that’s extremely beholden to Saudi Arabia (former leader of the CFG).Report

              • Avatar Troublesome Frog says:

                Is there any actual credible evidence that those claims are true, though? If so, it’s very interesting.Report

              • Avatar Kimmi says:

                Huma Abedin is from Saudi Arabia. I’m not going the route of the Breitbart sensationalism, in saying that she’s at all a fundamentalist. I’m simply saying that she was a spy.

                Her husband, Weiner, was a spy for Israel (who had the e-mails in 2015 — apparently they were curious), which explains why he had e-mails on his laptop that he didn’t need to. [Also: worst spy ever. Spies should not make national news for sending dickpics.]

                I will note that I know someone who worked for Clinton, so this stuff isn’t just being pulled from “I can see where someone’s from!”

                And the idea that CFG is paid by Saudi Arabia isn’t all that new, I’m sure (Toomey’s my senator).Report

              • Avatar Troublesome Frog says:

                I guess I should have put “credible evidence” in all caps or something.Report

              • Avatar Kimmi says:

                You aren’t the person who can determine where a person is based on an indoor picture of the person’s bedroom (okay, so it had a window).

                (That was actually a 4chan assignment for /b/)
                I can link the picture if you want, it’s a good exercise in detective work.Report

              • Avatar Troublesome Frog says:

                Buddha has a ghost penis living in your cereal.Report

      • Avatar Autolukos says:

        It’s by far the funniest thing about all the “they made us do it” silliness. A lot of conservatives and Republicans can’t fathom the idea that liberals and Democrats who don’t like the filibuster actually mean it.Report