The hearings for Gorsuch have gone about as well as Republicans could have hoped. He was knowledgable, forthright and responded to questions well. The Democrats have dug through his 2500+ decisions and found a few to make some hay of, but it’s not really going anywhere. So naturally they’re planning to filibuster the nomination.
Look, let’s be clear. If this filibuster happens, it has absolutely nothing to do with Gorsuch. It’s an angry reaction to the Republicans not allowing Obama to fill the seat compounded by the seemingly certain Clinton victory being snatched away. The Democrats had such dreams for replacing Scalia with a big-time liberal and destroying gun rights, crushing federalism and demolishing free speech.
I understand the anger but I think a filibuster would be tactically foolish. Gorsuch is replacing Scalia, a conservative. There is a very real possibility, over the next four years, that Trump will have to replace one of the liberals and will try to replace them with a true rock-head like Pryor. That is the hill they want to die on, not this one. The gripping hand is that, with a bad 2018 election slate, they may not be able to stop a future nominee. The Republicans could, potentially, have a filibuster-proof majority in the Senate. But they have to weigh that against filibustering Gorsuch, provoking the Republicans to nuke the filibuster and then having, say, Ginsburg replaced with someone way worse than Gorsuch.
But … I really doubt the thinking goes that far. As far as the Democrats are concerned, this is a “stolen” judicial seat. And so they will stamp their foot until the roof comes down.
Well, this happened. The Senate has voted for a partial nuclear option on the filibuster. Legislation and Supreme Court justices will still require 60 votes. But other nominees will only need a majority. Normally, senate rule changes require 67 vote, but Reid used a different procedure to pass the change 52-48. The primary issue here was the filibustering of three judicial nominees to bring the DC Circuit to its usual contingent of 11 judges.
As you can imagine, the Republicans are furious and are threatening future actions, including other rule changes by majority once they have the Senate back. It also being pointed out … quite correctly … that the Democrats are raging hypocrites on this subject, having spent the Bush years yammering on about process and sacred institutions and traditions. It was only when their judicial nominees were stalled that the suddenly discovered majoritarianism. I can almost guarantee that when the Democrats lose the Senate, they will unpass this rule change during the lame duck session than scream bloody murder when the Republicans try to restore it.
As for the rule change itself, my reaction is that I wish the Republicans had done this ten years ago. They sorta did when the Gang of 14 got judicial nominees through without compromising the filibuster itself. But I wish they’d made this kind of rule change to solve the problem long-term.
The filibuster is a critical check on the majority. It has stopped some of Obama’s dumber ideas (like card check) and almost stopped Obamacare. But I draw the line when it’s being used to hold up nominations that the President is obligated to make. There are nearly a hundred vacancies in courts around the country — vacancies that are slowing court cases and hurting businesses that need legal issues resolved. I spent most of the Bush years attacking Democrats for holding up Bush’s nominees (Janice Rogers Brown in particular); I’m disappointed that the Republicans decided to play the same game.
(While I’m on the subject, I do want to take on one talking point that the anti-filibusterites suddenly discovered when it was derailing their agenda. They frequently point out that the filibuster would theoretically allow senators representing 20.5 states and as little as 11% of the population to stop the Senate. But that has nothing to do with the filibuster; that’s the way the Senate is constructed. It is also theoretically possible for senators representing 25 states and 18% of the population to constitution a “majority”. The point of Senate is not to represent the people; it’s to represent the states. I have a long post cooking on the “scrap the Constitution” meme that has recently emerged on the Left.)
I don’t like the way this has been done. The Republicans are right that the Democrats have opened a can of worms here to further rule changes and the Republicans going by the absolute strict letter of Senate procedure to slow business even further. The way this should have been done is with another Gang of 14.
If you were awake late last night, you saw something pretty extraordinary unfold down in Texas. The legislature was attempting to pass a bill on the last day of the session that would have restricted abortion by (1) limiting it to 20 weeks; (2) requiring that clinics meet medical clinic standards; (3) requiring that abortion providers have hospital admission privileges. Opponents said the latter two would shut down all but five clinics in the state.
A building protest caught spark when Wendy Davis began a 13-hour filibuster to try to prevent a vote. When she was ruled to have broken the rules a third time — once for getting a back brace adjustment and twice for talking about topics deemed irrelevant — her filibuster was ended. What followed was two hours of parliamentary debate. At 11:45, the gallery erupted, shouting down the legislature. They voted for the legislation. But this morning, the Lt. Governor ruled that it had passed after the midnight deadline. For the moment, the bill is dead.
Many thoughts and I’ll have to go with bullet points that sum up much of what I said on Twitter.
Once again, the MSM fell flat on its face. Twitter, Facebook and blogs had copious coverage of what was going on. At the precise moment the vote was happening, CNN was highlighting … the calorie content of muffins. I’m calling it: 2013 is the year the MSM died. Almost all the big news — the IRS scandal, the NSA, last night in Texas — emerged from outside the MSM. And their typical reaction has been to either dismiss it or be snide about it, culminating in David Gregory pondering if Glenn Greenwald should be prosecuted for breaking the law (note to Gregory: I don’t think journalists breaking the law is a can of worms to you want to open, asshole). The MSM is still relevant, a little, for foreign news. Or at least they could be. Some journalists, like the ones who exposed the abuse in Bell, California, still fill a role. But the big news houses are nothing but fluff.
Probably the most amazing, if unsurprising thing, was the complete reversal of people’s attitudes on the particulars. Liberals who had spent years denouncing the filibuster suddenly thought it was the most awesome thing ever. People who had denounced peaceful Tea Party protests as display of thuggery and racism suddenly decided that shouting down the legislature was good citizen participation.
Me? Even though I’m mixed on the abortion issue and prefer the more dignified, restrained and lawful tactics used by the Tea Party, I am encouraged when I see citizens paying attention to what their legislatures are doing. I am always impressed by real filibusters not the bogus “we’re pretending to talk” kind.
The law itself, however, is not the most ridiculous thing. As pointed out, many countries have more restrictive abortion laws than Texas tried to pass, including western European ones. France, for example, only allows abortion on demand through 12 weeks, with exceptions for health of the mother or fetal illness. I really think, after the Gosnell horror, abortion clinics should be held to higher standards. And now that we’ve had fetuses survive after being born at 21 weeks, the push to move viability back was not unreasonable. However, the GOP has been winning legislative victory after legislative victory on the abortion issue. Something like last night was inevitable.
The victory abortion proponents scored last night may be temporary. There is no force on Earth that can stop Rick Perry from calling a special legislative session today to pass SB5. However, I suspect that the law is dead for now. The GOP, if they are wise … stop that snickering … will take their wins on abortion law and wait for passions to cool.
In the end, despite the extremely boring parliamentary debate that pushed SB5 past midnight, I found last night kind of riveting. Not because I am particularly sympathetic to the protesters, but because I am sympathetic to anyone pushing back on government. I want people protesting, calling legislators and getting involved because so many of us have fallen asleep at the switch. Our Republic only functions if we hold our leaders responsible for the decisions that they make and the laws that they pass.
So my challenge to those who participated last night, even it was just a “StandWithWendy” hashtag is this: are you willing to keep this up? Are you willing to push back on NSA abuses, even when it is the eeevil libertarians raising awareness? Are you willing to protest the IRS targeting groups based on their politics, even when it’s groups you don’t like? In short, are you going to stay involved when it’s not your pet issue? When it doesn’t involve aborting fetuses?
Because if you’re not willing to stay involved; if you’re going to bash the Tea Party when they do something like this; if you’re going to decry the filibuster when Rand Paul uses it, then you are not a participant, a protester, a citizen, a revolutionary, a patriot or someone who “stands” with anything.
You’re just a partisan.
It seems that Senator Harry Reid (D-Mordor) is out to finally change the Senate rules to limit the circumstances under which a filibuster (or threat of one) can be done.
My response? Good.
For too long, the filibuster has been abused by the minority party (both parties at one time or another) to choke the business of the Senate. Worse, Reid has been hiding behind it as an excuse for not allowing anything to get done.
If he wants to change the rules and start taking more accountability for the poor performance of his chamber, fantastic. Yes, it will suck as long as the Democrats are running the Senate, but I wanted this to happen when the GOP ran the show too.
This should happen. Let’s start seeing some voting out of there and quit letting them all take political cover behind arcane, non-Constitutional rules.