Balkinization: Why the Democrats are in a win-win situation by filibusetering

Why the Democrats are in a win-win situation by filibusetering

Sandy Levinson

Let me say at the outset that I strongly support filibustering the nomination of Judge Gorsuch to join the Supreme Court. Part of the reason is that I regard his appointment as filling a "stolen seat." Part of it is that I thought his "answers" were remarkably non-enlightening. No one who is a serious originalist can possibly give as much primacy to precedent as he was pretending to do. And "pretending" is the operative word, since it is inconceivable that he won't vote to reverse a number of important cases. After all, his endorsement of Harlan's dissent in Plessy is a dog whistle for invalidating any and all affirmative action programs in the name of "color-blindness." And, given the awful reality of lifetime tenure, I don't support putting a 49-year-old ultra right-winger on the Court. Finally, there is the matter of the legitimacy of Donald Trump as president, not with regard only to his being a sociopath or to the operation of the idiotic electoral college, but with regard to the increasing likelihood that his minions were actively working with Russia to throw the election, in part because Trump himself is deeply in hock to Russian oligarchs (given that no self-respecting American bank would lend any money to such a con-man who so obviously does not believe in paying his debts).

But this is really beside the point, After all, many "thoughtful people" are saying that the filibuster would be a mistake because, gasp, it might induce the GOP simply to eliminate it for Supreme Court appointments. My response: Bring it on! The true disgrace is if Gorsuch is confirmed without a filibuster. If he is confirmed via the repeal of the filibuster, that's just fine. But one should not so quick to assume that there will be fifty-one votes to eliminate the filibuster.

There are two reasons Republicans might in fact be reluctant to eliminate the filibuster (and, therefore, to sacrifice Gorsuch and, possibly, other replacement nominees). One is a principled belief that the filibuster is a good idea. The other, far more important in this context, is the justified fear that Ginsburg and Breyer (and perhaps Kennedy as well) will live on until 2020. This would mean that the Democrat elected in 2020, when the electorate expresses its justified repugnance against a GOP that collaborated with a sociopath and proved unable to govern (begin only with the present fiasco on medical care, to be followed shortly by many others). If the filibuster still survives, that President Franken will be stymied by Republicans [added: and Democrats might be reluctant to pay the price of eliminating the filibuster if Republicans have in fact maintained it last a genuine cost to themselves]. If it has been eliminated (by the Republicans themselves in their eagerness to get young Gorsuch on the Court), then Franken plus 51 Democrats int he Senate can place, say, Pam Karlan and others on the Court to replace Ginsburg, Breyer, Kennedy, for starters. Getting rid of the filibuster, for Republicans, requires a high confidence in the demise of Ginsburg and/or Breyer and the voluntary resignation of Kennedy. I don't know about you, but I'm not sure I'd be comfortable making that bet. And, of course, only three Republican senators have to agree, for whatever reason, in order to keep the filibuster.

I'm not really interested in hearing any encomia to Judge Gorsuch. What I'm interested in is whether the Gorsuch-admirers on this list are comfortable with eliminating the filibuster even if it increases the likelihood of a liberal akeover of the Court if Ginsburg, Breyer, and Kennedy last it out.

Posted 6:11 PM by Sandy Levinson [link]

Comments:

You are assuming that Republicans keeping the filibuster now means that Democrats will (or, at least, are more likely to) reciprocate later when they have the opportunity to take over the court by taking Kennedy's seat. I don't think that assumption of future reciprocation is justified. More importantly, I'm sure that Republicans don't think that assumption is justified.

# posted by

tjchiang : 6:34 PM

To be clear, it would be perfectly irrational for Republicans to preserve the filibuster with the idea that they might need to resort to it themselves in the future. Democrats have already made it quite clear that, should they ever regain the majority, the filibuster is history:

Harry Reid in October of last year:

“I really do believe that I have set the Senate so when I leave, we’re going to be able to get judges done with a majority. It takes only a simple majority anymore. And, it’s clear to me that if the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I’ve told 'em how and I’ve done it, not just talking about it. I did it in changing the rules of the Senate. It’ll have to be done again," Reid told TPM in a wide-ranging interview about his time in the Senate and his legacy.

"They mess with the Supreme Court, it'll be changed just like that in my opinion," Reid said, snapping his fingers together. “So I’ve set that up. I feel very comfortable with that.”

Tim Kaine, also in October of last year:

“I was in the Senate when the Republicans’ stonewalling around appointments caused Senate Democratic majority to switch the vote threshold on appointments from 60 to 51. And we did it on everything but a Supreme Court justice,” Kaine said. “If these guys think they’re going to stonewall the filling of that vacancy or other vacancies, then a Democratic Senate majority will say, ‘We’re not going to let you thwart the law.’”

Democrats, Kaine ultimately predicted, “will change the Senate rules to uphold the law.”

Why, Reid even suggested that, if thwarted, Democrats would abolish the filibuster even for legislation:

Unless after this election there is a dramatic change to go back to the way it used to be, the Senate will have to evolve as it has in the past,” Mr. Reid told me, referring to a former tradition of rarely mounting filibusters. “But it will evolve with a majority vote determining stuff. It is going to happen.”

I don't see how your party could have made it any clearer: The moment Democrats again take power, and Republicans attempt to make use of the filibuster, it will be abolished. And, considering that it was your party that abolished the filibuster for nominations short of the Supreme court, the threat has to be taken seriously.

# posted by

Brett : 6:47 PM

So, to answer your question, I'm quite comfortable with abolishing the filibuster, given that Democrats have already assured us of their own intent to abolish it if Republicans are ever again in a position to use it.

Whether the Republicans WILL abolish it themselves, is, of course, another matter. It's not for nothing that Republicans refer to their own party as "The Stupid Party".

Probably the most optimistic scenario here would be for Republicans to abolish the filibuster in toto, give Democrats a good taste of what it's like being the minority party without it, and then offer to restore it by constitutional amendment, so as to put it beyond the reach of both parties to unilaterally abolish.

I suspect, however, that Democrats would refuse the offer; Your party does seem to have this idea that at some point just beyond the next election, you're going to take permanent control of the government. And so you tend to discount the prospect of payback when you lose control again.

# posted by

Brett : 7:04 PM

There really is no other rational choice for Dems. First, if Garland was not even given the respect of even meeting Republican Senators (I recall only a handful)just a as a courtesy and Republicans chose not even to begin hearings, such a breach of comity mandates that Dems filibuster Gorusch, at minimum. Otherwise, Dems have rewarded the bully and signaled to their base that it is incapable of protecting their interests.

Second, if one is even to entertain the Republican Party's rationale for its behavior -- we needed to wait for the voters to decide -- then it is certainly incumbent for the nation to hold off putting someone on the Supreme Court for decades if the POTUS and/or his team are under investigation for criminal activity, including colluding with a known adversary to the USA, Russia, in illegally influencing our nation's election for the presidency. That the AG told a bald untruth under oath and had to recuse himself and we have a POTUS who made an unqualified statement that his predecessor committed a crime of wiretapping him without any basis in fact demands, as a nation, national leaders put the brakes on this POTUS.

Finally, the filibuster is premised on certain norms -- the principle one, IMO, is that it is used sparingly. That's certainly how it's been used historically. Republicans basically commoditized it in the last decade or two such that it has become standard operating procedure. As such, it has basically been an over-sized tool of a minority of this country. If there is so little discretion to its use, the majority should not unilaterally disarm. We saw the price of disarmament during the last eight years.

# posted by

Invisible Man : 7:06 PM

You say that one reason for not changing the filibuster rule is the principled position that the filibuster rule is a good idea. But the question if and when there is a filibuster of the Gorsuch nomination is not whether a filibuster rule is a good idea. It is whether there is already a rule allowing a filibuster. If there is, it doesn't matter whether you think it is a good idea (unless there is a motion to change the rules, which is a whole different matter). If there isn't, it will be very hard to explain to your constituents that you voted to uphold the filibuster because you think it is a good idea, but that anytime a majority of the Senate thinks its not a good idea, it can vote to override the filibuster.

I recognize, of course, that few people seem to agree with me that this is the issue.http://www.pointoforder.com/2016/12/14/the-right-way-to-change-the-senate-rules-a-response-to-ilya-shapiro-and-others/ But I still find this puzzling. If it isn't the issue, who cares whether Gorsuch or Pam Karlan is appointed to the Supreme Court? If no one thinks the Supreme Court is doing anything other than voting for the results that its members think are a good idea, it won't be very long before people stop paying any attention to the Court's rulings. The only reason for respecting those rulings is the belief that they are based on what the law actually is and that there is some reason for obeying the law, even when you don't actually want to. Once people stop believing that (and it seems like we are pretty close), obeying the Court's rulings will seem like a sucker move, just like obeying the Senate's rules seems like now.

# posted by

mls : 7:12 PM

The GOP is not yet in a position where they have to go nuclear.

The Democrat leadership was always going to filibuster to appease their base. The question is how many Democrats will suport the filibuster.

Pollitically, red and purple state Democrats have no incentive to filibuster. The Democrats failed to Bork the nominee as Gorsuch easily navigated their insinuations and misrepresentations, so the Democrats representing red and purple states lack a pretext to oppose the nominee. Far more than the 8 democrats needed to suspend debate are up for reelection in red and purple states whose electorates support the nomination.

I suspect the nuclear option will be unnecessary until Trump has the opportunity to replace Ginsberg and IF he nominates another Gorsuch, presenting the prospect of a genuine conservative majority which can ignore the occasional defection of a Kennedy or Roberts. Faced with reversal of Roe and large parts of the unconstitutional progressive state, the Democrats will do everything in their power to stop the nominee.

# posted by

Bart DePalma : 7:16 PM

Which is why the GOP is actually better off going "nuclear" on Gorsuch; There are several squishes on the Republican side who might be reluctant to abolish it to get past a Democratic filibuster of a conservative replacement for Ginsburg, who might be amenable to going nuclear over Gorsuch. Best to get it over with early. Particularly since, as I've pointed out, Republicans have already been assured they'll never be permitted to filibuster again anyway.

The contrary argument, of course, is that the Democrats are virtually certain to lose some Senators in 2018, at which point the squishes won't have the deciding votes anymore.

IMO, we're currently in the end game for our existing constitutional structure. Norms of constitutional compliance and comity are breaking down at an ever accelerating pace. The parties are now maneuvering to see who will get to dictate the next constitutional structure. I think Democrats understand this, which is why they are so convinced that the next time they take power it's for good. Yet to be seen is whether the Republican party has grasped that yet.

The death of the filibuster is just a symptom of that.

# posted by

Brett : 7:37 PM

It's unclear to me what all Democrats will do in the future, even if someone no longer in the Senate or Sen. Kaine said the words provided. But, if the Republicans kept on acting like they did, it is reasonable to suppose eventually the rules would have changed some more. After 2016, I gather though, assumptions are questionable.

"Your party does seem to have this idea that at some point just beyond the next election, you're going to take permanent control of the government."

You apparently have the idea they have that idea. Why people who have been in office as the parties flip-flopped control repeatedly would think this is unclear to me.

Sen. Reid and the Democrats saw how things were going including Republican intransigence. They ended the rule for executive appointments since it brought serious gains (some that extended long past 2016) while recalling that filibustering net did little to restrain the power of the executive over the courts and other offices. For instance, most controversial Bush appointments to the federal courts were eventually confirmed. The senators, including long time members, decided that all things taking into consideration, the rules should be changed.

A consistent libertarian/small government sort might want to keep the filibuster as long as possible, even if it will in some fashion inhibit Republicans, because it will be used to block federal power by the minority. But, again, consistency generally flows in some quarters in the direction of partisan consistency.

As to the Republicans, I gather a few of them are wary about ending the filibuster completely, since it gives them power and they are traditionalists. It took a while, even in the face of much Republican intransigence, for a few Democratic senators to go along. Some Republicans are okay with the bottleneck involved here. Gather they would be less concerned regarding judges there though. But, won't try to read their minds too much. Let's wait.

# posted by

Joe : 8:14 PM

"But the question if and when there is a filibuster of the Gorsuch nomination is not whether a filibuster rule is a good idea. It is whether there is already a rule allowing a filibuster."

Realize I disagree with mls on constitutional rules here, but find the whole thing confusing here. What 'the' question is tends to be misstating, since there is often more than one factor and the conclusions here up to reasoned debate. There is a rule allowing a filibuster. There is also the power to change said rule. It's right there in Art. I. The Senate as a whole, by majority vote, has the power over rules of procedures unless it clashes with some other constitutional provision.

So, if it is a "good idea" would be important to determine. Likewise, it's fine to argue that it's a good idea, like various things are a good idea ... until experiences warrant changing things. McCulloch v. Maryland spoke about how Congress has broad power to adapt to the times in such a fashion. It also is sound practice.

"If no one thinks the Supreme Court is doing anything other than voting for the results that its members think are a good idea, it won't be very long before people stop paying any attention to the Court's rulings."

We now jump from what the Senate does to what the Supreme Court is doing for some reason. Again, not aware that people think the Supreme Court is simply relying on "good ideas" here.

"The only reason for respecting those rulings is the belief that they are based on what the law actually is and that there is some reason for obeying the law, even when you don't actually want to."

But, the Senate, by the words of the Constitution, has discretion over its rules, based on just that. "The law" gives them said power.

"Once people stop believing that (and it seems like we are pretty close), obeying the Court's rulings will seem like a sucker move, just like obeying the Senate's rules seems like now."

The fact people disagree with you on the proper way to change the rules of the Senate is duly noted, but the Senate rules to me are being followed, given the overriding gloss of the Constitution. There is a rule now that requires sixty votes for cloture. The Senate Democrats might push that here. The Senate Republicans can then, following the law and rules, change it.

Your bait/switch on how this will cheap the respect of the law as applied by the courts is unconvincing.

# posted by

Joe : 8:28 PM

"The Senate rules are being followed "; That's actually kind of funny, if you know what the 'nuclear option' actually consists of.

The nuclear option doesn't involve actually changing the Senate rules. It's much more 'living Constitution ' than that.

The nuclear option consists of having the Senate Parlimentarian issue a ruling interpreting the Senate rules as not permitting a filibuster, while the actual words of the rules continue to say the precise opposite. You never actually change the rules, in the nuclear option. You just agree to lie about what they mean.

# posted by

Brett : 9:05 PM

Joe- I have addressed all the points that you are making, or trying to make, in my posts on this subject. You of course are under no obligation to read them, but I have explained why what the Senate did in invoking the nuclear option cannot be considered an exercise of its constitutional authority to change the rules, nor by any of the legal theories offered by law professors ex ante to justify abrogating the filibuster.

No doubt someone could come up with a legal theory to justify what the Senate did, but so far no one has, nor has any senator to my knowledge offered one.

# posted by

mls : 9:18 PM

mls, I already have said I disagreed with you. And, yes, people have come up with legal theories to explain it. The fact you disagree they hold up is duly noted.

If we don't agree with your premises, your fears suddenly much lose force. And, even if we did, what a legislature does regarding following rules & what courts do as a matter of public reaction don't exactly overlap.

====

The nuclear option doesn't involve actually changing the Senate rules. It's much more 'living Constitution ' than that.

The term "living Constitution" continues to be used basically as a general bit of vitriol. I'll continue to argue that what is done is practice is a sound approach with the added value of following original understanding (fwiw).

Anyway, the net result is that before the option is applied, the "constitutional option" if one likes, sixty votes are necessary and after, not so much. The rules have been changed. Humor being subjective, this can amuse you.

# posted by

Joe : 9:26 PM

Would you care to name one of those people?

# posted by

mls : 9:49 PM

This is not a direct response to mls' inquiry, but here's a 2007 article by Sarah Binder et al titled "Going Nuclear, Senate Style" that might be a starting point. Of course this article was published years prior to the Senate action during the Obama Administration. (I've been hors de combat because of lunch arrangements today fueled with a Dark 'N Stormy, or two as "Nunes" was the Werd.) Here's the link:

http://spia.uga.edu/faculty_pages/ajmadonn/Going%20Nuclear.pdf

The nuclear option may be unclear, or vice versa.

# posted by

Shag from Brookline : 10:51 PM

This comment has been removed by the author.

# posted by

Joe : 11:38 AM

That make arguments but meet your particular standards even though they (including law professor types) have perfectly reasonable approaches?

Seems a fools game to "try."

This matter has been dealt with in detail in various places, beyond any particular article Shag or Brett even wants to reference, and bottom line mls disagrees with the legitimacy of the approach. But, the confusion here, as compared to usual basic disagreement (though some are so sure of themselves, they are simply confused the other side don't see the logic of their ways ... or figure the other side must just be bs-ing) is misplaced at best.

An argument, a deep concern, was raised about the rule of law. It's overblown. In particular, how use of this particular procedure, the Senate being somewhat if you like "loose" in their rules not somehow being novel starting a few years back, suddenly is deeply connected to the public not respecting the law of the courts is dubious at best. After all, Gorsuch assures us he is a judge, not a politician.

He was somewhat full of it in some of his remarks, but there does remain a basic difference between Senate rules, especially altering them in the face of certain things that make novel applications warranted, and how courts apply the law. I am concerned with how the Senate applies their rules, but that overall principle made changing the filibuster practice appropriate taking everything into consideration.

ETA: Basically, there is a limited number of people who even pay attention to all of this Senate business or even know about filibusters. To the extent they do, they very well largely think the Senate and courts are different. Finally, to the extent there is some meta-concern, [1] the Senate is following the law [2] dealing with how the Republicans changed normal practice here in particular is important to address it.

http://www.nyulawreview.org/sites/default/files/%20NYULawReviewOnline-91-Kar-Mazzone.pdf

# posted by

Joe : 11:45 AM

This may be the shortest comment thread for a post by Sandy.

# posted by

Shag from Brookline : 11:56 AM