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Posted by on Apr 6, 2017 in Law, Politics | 0 comments

Nuclear Option Tragic But Inevitable – For Whichever Party Controlled The Senate

To paraphrase the saying, “It was the best of times, it was the worst of times,” when it comes to the matter of Senate Republicans nuking the filibuster of Supreme Court nominees, it shouldn’t have been done, but it had to be done. It was inevitable and, given the hyper-partisanship in Congress, that would have held true for whichever party held control.

West Virginia Senator Joe Manchin, a Democrat and a moderate had it right when he noted how, “Frustratingly, both parties have traded talking points: Republicans say it’s about obstructionism and Democrats say it’s a power grab.” In that vein, the only thing different about the decision to go nuclear is that the Republicans currently preside over the Senate and the Democrats don’t. Were Democrats in the majority, they would be doing the same thing. How do we know? Because last year on the stump, leading Democrats, including vice-presidential nominee Tim Kaine gleefully spoke of going nuclear had Hillary Clinton won the election and Democrats taken back the Senate.

Don’t get me wrong. There should be no pride in the fact that the world’s greatest deliberative body has broken down over nominations nor should there be any comfort that resorting to the nuclear option had to occur. It’s tragic. I have long been of the view that a nominee for a lifetime appointment to the nation’s highest court should receive at least 60 votes – and I would be a strong advocate of that being a future Constitutional requirement. But over the course of recent years, neither party seemed prepared to make that happen and it has long been evident that the filibuster’s collapse would simply depend on whichever side blinked first. In this case, it was Republicans. But just in case there are doubts, allow me to disabuse readers of the notion that the Grand Old Party is Little Red Robin Hood.

Four years ago, it was the Democrats that blinked on the nuclear action (for every position but Supreme Court nominations) and for good reason. While Republicans claim that cabinet appointments were not being filibustered, then-Senate Minority Leader Mitch McConnell wouldn’t cooperate with his Democratic counterpart, Majority Leader Harry Reid, in scheduling votes for, among others, EPA Administrator-designate Gina McCarthy which means that the only thing that stopped Republicans from filibustering was the fact that Reid knew he couldn’t get an agreement to bring it to the floor. But Republicans could not even claim to have taken the high road on judicial appointments because they did mount filibusters. Around the same time, they were objecting to filling three seats on the D.C. Court of Appeals because, their official line was that the caseload did not merit them. So plentiful were the Republicans in blocking Obama’s nominees that McConnell actually earned the nickname, the “King of filibusters.” In fact, in a study conducted by Politifact, by 2013, more filibusters had been launched against Obama administration nominees (79) than used at any other time total (68). McConnell was Minority Leader the whole time so, how ironic is it that he opted to eliminate the very tool that made him so effective.

Arizona Senator John McCain cited blocking the D.C. nominees as “an extraordinary circumstance,” even though he was part of the infamous “Gang of 14” eight years earlier which vowed to do just the opposite: oppose filibusters unless there were “extraordinary circumstances” relating to a nominee. In the case of the D.C. nominees, there was no such thing except that Republicans had no desire to add more liberal judges to that bench. This week, McCain called the likelihood of going nuclear “a severe body blow to the Senate as an institution” and added that “whoever said it would be good for the institution is a stupid idiot,” before voting for the rules change (whether McCain knew it or not, McConnell was the person who called it “good for the institution”). The senior Senator from Arizona should be congratulated for morphing into an octopus because on this issue, he has managed to take four different positions over the course of a decade on a two-sided issue. Thus, the only conclusion was that McCain’s change of heart was evidence that different standards were applicable to different presidents.

Next, a Republican talking point has been that no filibuster was launched against Democratic nominated Supreme Court nominees Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. That is disingenuous. Senate Democrats held 60 seats at the time of Sotomayor’s confirmation in 2009 and, while that had dropped to 59 at the time Kagan was put to a vote, more than enough Republican Senators had vowed to support her. Ginsburg was confirmed in 1993 by a 96-3 margin at a time Supreme Court nominees typically had heavy bipartisan support (it should also be noted that Antonin Scalia was confirmed unanimously). In plain English, any filibuster would have failed and Republican Senators know it.

Now, lets look at the Gorsuch filibuster. It can’t say that Democrats, by filibustering Gorsuch, were abusing it – there are genuine ideological concerns. However, was doing so a sound strategy? There were schisms in the Democratic Party that called for perhaps saving it until the next seat, as the “Scalia seat” that Gorsuch would fill would not change the balance of the court. That school of thought, promoted by Mike Bennet of Colorado among others, argued that Democrats would have more credibility by simply waiting until the next vacancy, particularly if President Trump nominated an extreme nominee. Bennet was pitted against Minority Leader Chuck Schumer who contended that every seat was important. But while Democrats could have opposed Gorsuch simply by voting “no,” on the Senate floor, did they shoot themselves in the foot by reacting too soon? We’ll obviously find out when there’s a new vacancy.

As for the GOP, you reap what you sew. McConnell said on the Senate floor that, “there cannot be two sets of standards, one for the nominees of Democratic presidents and another for the nominees of Republican presidents.” This means that if a Supreme Court seat comes open in the midst of the 2020 election season and Democrats control the Senate, no howling is permitted if they choose to not bring it to a vote – or hearing, as the GOP did with Merrick Garland.

In closing, these are not the best of times for the Senate and the decision to go nuclear will not help. Let’s hope that when it comes to future nominees, enough Senators on both sides of the aisle will look at qualifications rather than the party label of the president who nominates them.

photo credit: Schteeve2010 Let’s Play Democrats and Republicans via photopin (license)

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