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“Secretly On The Ballot In November”: The Future Of The ‘Nuclear Option’ For Supreme Court Nominees

After the initial intense focus on President Obama’s determination to nominate a successor to Antonin Scalia and Senate Republicans’ determination to block him, it’s beginning to sink in that the struggle for control of the Supreme Court could be a complicated and drawn-out battle. As Juliet Eilperin and Robert Barnes of the Washington Post point out today, the next president could have more than one chance to appoint a justice, and both conservatives and liberals understand the stakes could be huge:

The Scalia vacancy technically gives Obama the chance to establish a liberal majority on the court for the first time in decades, but even if he manages to seat a new justice in the face of blanket GOP opposition, the victory could be fleeting …

Scalia’s death at age 79 shows the peril of making predictions about the Court’s future, but the age range among the current justices would suggest that a Republican successor to Obama could have greater impact on remaking the court than a Democrat, especially if Scalia’s seat stays vacant into the next administration. Simply put, the court’s liberal bloc is older and may offer more opportunities for replacement.

When the new president is inaugurated, Associate Justice Ruth Bader Ginsburg will be almost 84. Anthony Kennedy will be 80 and Stephen Breyer, 78. Replacing Ginsburg and Breyer, both appointees of President Clinton, with conservatives would instantly shift the court’s balance for years, even if an Obama’s appointee were to replace Scalia. (The next oldest justice is Thomas, who was nominated by George H.W. Bush and will be 68 this summer.)

Many conservatives, of course, hate Kennedy, too; he was the swing vote in upholding Roe v. Wade in 1992, and played a key role in the Court’s marriage-equality decisions.

But more fundamentally, partisan polarization and gridlock in Congress has significantly elevated the importance of non-legislative entities, including the federal courts and executive-branch agencies whose power the courts might choose to expand or restrain.  So control of the commanding heights of the Supreme Court is more important than ever.

What complicates the issue is the precedent set by Senate Democrats under Harry Reid in 2011 (Republicans had come close to taking the same action in 2005): the so-called “nuclear option,” removing the right to filibuster executive branch and non-SCOTUS judicial appointments. With both parties in the Senate steadily retreating from the ancient practice of deferring to the president’s choices for the High Court, and with the hot-button issues facing SCOTUS making “compromise” choices less feasible, the difference between having to muster 50 and 60 Senate votes to confirm a presidential nomination is increasingly momentous.  And for that reason, if either party wins both the White House and the Senate this November, going “nuclear” on SCOTUS appointments by getting rid of the filibuster is a very high probability (and even if it doesn’t happen, the threat of “going nuclear” can and will be used to force the minority party to be reasonable).

But the converse situation is worth pondering, too. If, to cite a lively possibility, Democrats hang onto the White House while Republicans hang onto the Senate, there is no way the Senate invokes the “nuclear option.”  Senate resistance to a progressive justice would likely stiffen in 2018, when Republicans will enjoy one of the most favorable Senate landscapes in memory. 25 of 33 Senate seats up that year are currently Democratic, including five in states Obama lost twice.  Add in the recent GOP advantage in the kind of voters most likely to participate in midterm elections, and the ancient tendency of midterm voters to punish the party controlling the White House, and the odds of a Democratic president being able to impose her or his will on the Senate on crucial SCOTUS nominations between 2019 and 2021 is very slim.

If Democrats want to shape the Court’s future, they’d do well not only to win the White House but to take back the Senate this November, and get rid of the SCOTUS filibuster in hopes that restoring it will be too controversial for Republicans even if they reconquer the Senate in 2018. By then, of course, Senate Republicans may be looking forward to their own ability to shape the Court after 2020 if they win back the presidency then. It’s going to be a chess game with big and continuing arguments over the rules.

 

By: Ed Kilgore, Daily Intelligencer, New York Magazine, February 29, 2016

March 1, 2016 Posted by | Democrats, Filibuster, Republicans, U. S. Supreme Court Nominees | , , , , , , , , | Leave a comment

“McConnell Decries ‘Obstructionism’, Irony Dies”: How Perspectives Can Change When One Moves From The Minority To The Majority

On literally the first day of the new Congress, Politico asked Don Stewart, Senate Majority Leader Mitch McConnell’s (R-Ky.) spokesperson, what McConnell sees as his biggest challenge. “Democrat obstruction,” Stewart replied.

Putting aside the fact that he probably meant “Democratic obstruction,” the response was striking in its irony. McConnell, arguably more than any senator in the nation’s history, mastered the art of obstructionism, taking it to levels with no precedent in the American experiment. For his office to suddenly decry McConnell’s own practices was a reminder of just how much perspectives can change when one moves from the minority to the majority.

A month later, the posturing is almost amusing.

Senate Majority Leader Mitch McConnell (R-Ky.) accused Democrats Wednesday of knee-jerk obstructionist tactics, flipping a script that Democrats used many times in recent years.

McConnell criticized Democrats for filibustering a motion to debate a House-passed bill funding the Department of Homeland Security that contained language blocking President Obama’s executive actions on immigration.

“And now Americans are wondering: What could possibly lead Democrats to filibuster Homeland Security funding?” he said on the Senate floor.

I suspect Americans aren’t really wondering that at all – the question is actually pretty easy to answer, as the Majority Leader probably realizes – but it’s the broader context that’s truly amazing.

If we were to create some kind of electronic mechanism to measure hypocrisy on a dial, and we had the machine analyze Team McConnell’s whining, the box would have very likely caught on fire yesterday.

To be sure, when it comes to filibuster hypocrisy, there’s plenty of bipartisan chiding to go around. When a party is in the majority, its members discover the remarkable value of majority rule, a sacrosanct principle that senators ignore at the nation’s peril. When that same party is in the minority, its members magically conclude that tyranny of the majority is a scourge that must be tempered with overuse of “cooling saucer” metaphors.

It’s therefore quite easy to dig up quotes from Democrats and Republicans contradicting themselves quite brazenly as they transition between minority, majority, and back.

But McConnell is nevertheless a special case. In recent years, specifically after President Obama took office, the Kentucky Republican turned obstructionism into an art form. He abused institutional norms and rules in ways his predecessors never even considered, filibustering everything he could, as often as he could. McConnell operated with a simple principle: If a bill can be blocked, it must be blocked.

Following his lead, Senate Republicans not only spent six years refusing to compromise or accept any concessions on any issue, it also imposed filibusters on every key piece of legislation to reach the floor. Before the so-called “nuclear option,” the GOP minority even routinely filibustered nominees they actually supported.

It was all part of a deliberate (and occasionally successful) strategy in which McConnell would obstruct everything he could, making Democratic governance as impossible as he could make it, without regard for the consequences.

Some reflexive complaining from McConnell and his allies is to be expected – their own medicine apparently has a bitter taste – but self-awareness is an under-appreciated quality. If the Majority Leader wants to be taken at all seriously, he can either avoid complaints about “obstructionism” or he can hope for mass amnesia to sweep the political world.

I’d recommend the former over the latter.

 

By: Steve Benen, The Madow Blog, February 6, 2015

February 7, 2015 Posted by | Filibuster, GOP Obstructionism, Mitch Mc Connell | , , , , , | Leave a comment

“The Senate As A Gangster’s Paradise”: Guess Who The Two Republican Senators Are With “Gang” Records As Long As Your Arm?

When I read articles like today’s piece in The Hill with the headline “Senate Republicans feud over whether to keep nuke option,” I feel a quick burst of the cynicism hormone. Aside from confusion over the term “nuclear option” (which means adoption of filibuster rules by a majority-vote rules resolution, not the rules themselves), we’re given the unlikely impression that GOPers are agonizing over showing themselves as hypocritically inclined to reverse the loudly expressed objections they made when Democrats provided for majority-vote approval of executive and non-SCOTUS judicial nominations:

While many expressed anger over last years’ move by the Democrats and Majority Leader Harry Reid (D-Nev.) to unilaterally change the rules through a procedure known as the “nuclear option,” some say the new rules should be kept in case a Republican wins the White House in 2016.

Sen. John Thune (R-S.D.) said Republicans will take their time reaching a decision.

“A lot of our guys still feel very strongly about just the wrongness of what [Reid] did and the position it’s put everybody here in the Senate in,” Thune said.

“Now we’re having to go through a fairly lengthy process to figure out, in the majority, how we want to proceed.”

Yeah, well, or you’re trying to display an agonized uncertainty before you do the predictable thing of making life easy for a future Republican president, with the knowledge that during the next two years a Senate Republican majority makes filibustering Obama’s appointees unnecessary.

But this does give me slight pause:

Sens. Lindsey Graham (R-S.C.) and John McCain (R-Ariz.) both said keeping the new rules would be dangerous

Graham said that, while some Republicans are “salivating” over the possibility of being able to more easily confirm their picks under a Republican president, removing the filibuster destroys incentives “to go across the aisle and pick up a few votes.”

This is code for “removing the filibuster eliminates the need for bipartisan ‘gangs’ to navigate the confirmation process.” Guess who the two Republican senators are with “gang” records as long as your arm? Yep, it’s the Amigos.

Now if you are a believer in bipartisanship as an end in itself, that all sounds fine. But if you think maintaining the filibuster not only makes governing very hard but empowers deal-cutting oligarchs producing logrolling abominations, then maybe you are less happy with the Senate as a Gangster’s Paradise.

In any event, if Republicans are determined to keep the limited majority-vote rules in place, and particularly if they are interested in expanding them, they ought to be able to–ironically, given Graham’s rationalization for keeping the Good Old Rules–“go across the aisle and pick up a few votes” from progressive Democrats committed to eroding the filibuster by any means necessary.

 

By: Ed Kilgore, Contributing Writer, Political Animal, The Washington Monthly, December 10, 2014

December 11, 2014 Posted by | Filibuster, Republicans, Senate | , , , , , | Leave a comment

“The Senate Comity Brigade Was Wrong”: Democratic Activists Urging Filibuster Reform For Presidential Appointments Were Right

I wrote a few days ago about how the Supreme Court’s decision to bar recess appointments made with less than a 10-day break in Senate proceedings increases the importance of controlling Congress.

But it also proves again that Democratic activists urging filibuster reform for Presidential appointments were right, and the status-quo-ante comity-obsessed Senators were wrong.

Now the Democrats who supported changing the rules are rightly taking plaudits for their success:

Democrats say the decision Thursday to rebuke Obama’s 2012 appointments to the National Labor Relations Board has made their change to Senate rules seem remarkably prescient. That change made it easier for the Senate to confirm Obama’s nominees, transforming recess appointments — a tactic to get around the chamber’s hurdles — into something of a relic.

That shift has already allowed Senate Democrats to squeeze through several nominees who might have been defeated under the old framework.

“Clearly this president has faced more opposition for even routine appointments, let alone important lifetime appointments like the judiciary. I’m sorry we had to change the rules and it’s created some pain in our Senate that’s still there,” said Senate Majority Whip Dick Durbin (D-Ill.). “But there had to be a way for this president to lead.”

The language used by Durbin here is still odd. It has “created some pain” in “our” Senate? Too often, the language used by Senators to describe the upper chamber is reminiscent of a private drinking club or children’s clubhouse. It isn’t. Whatever advantage there might have been in the past to friendly interactions between Senators across party lines to accomplish national goals has long been erased by hardline partisanship.

That’s largely because movement conservatives largely purged northern Rockefeller Republicans from their ranks, and because the old Dixiecrats who liked New Deal policies as long as they didn’t benefit minorities too much are gratefully a relic of the past. So on most issues not related to national security, there’s frankly very little reason for Senators to “reach across the aisle” anymore.

The clubby comity so prized by Senators now serves little purpose beyond the worst kind of bipartisanship on behalf of wealthy corporate interests and military contractors. It would be far better for Senators to worry more about how well their own views match those of their constituents, than how well they get along with one another.

 

By: David Atkins, Political Animal, The Washington Monthly, June 28, 2014

June 30, 2014 Posted by | Filibuster, Senate | , , , , , , | Leave a comment

“No, The World Didn’t End”: Maybe We’ll All Survive After All

I’m a bit amused at some of the articles dribbling out of Washington at present that find various silver linings for the demise of the filibuster against executive-branch and lower-court-judicial appointments. I mean, we all know it Killed the Senate As We Know It, at which act the angels are still weeping, and it spoiled the great and dignified work of the “gangs” cutting ad hoc deals to avoid this or that filibuster. I know it’s hard to imagine anything that would significantly offset such terrible damage–what will Lindsey Graham do between primary challenges?–but The Hill‘s Elise Viebeck finds one that has the added bonus of giving Republicans a trophy to mount on its wall:

Kathleen Sebelius may become the biggest loser in the Senate’s approval of filibuster reform.

The Health and Human Services (HHS) secretary has kept her job despite the botched rollout of ObamaCare’s insurance exchanges, but it will now be easier for Obama to replace her.

After the Senate’s vote, confirming an executive-branch nominee now takes just 51 Senate votes. Some think that raises the likelihood Sebelius will soon be a former Cabinet member.

“The president’s hands were previously tied,” said John Hudak, a fellow in governance studies at the Brookings Institution, who wrote a piece on the topic Thursday.

“Now, he has more breathing room and he is able to fire whoever he wants at HHS. That’s a very, very appealing approach, whether it fixes the problems with ObamaCare’s rollout or not.”

Better yet, Democrats can approve appointments to the Obamacare Death Panel without Republicans getting their hands dirty with complicity in genocide.

The filibuster vote could also make it easier for Obama to fill the healthcare law’s controversial cost-cutting board, another big advantage for the president.

Known as IPAB, the panel has no members yet is meant to submit its first proposed cuts in January. Any nominees from Obama require Senate confirmation, which is now an easier prospect.

Before Thursday’s vote, Obama’s nominees needed 60 votes to survive procedural motions. Now they need 51.

And hey, maybe the nuclear option shattered the deal-making dreams of “moderate” Republicans, but it might help keep some Democratic “centrists” in the Senate:

Beyond helping Obama, the change could make life easier for some of the Senate Democrats who face tough reelection contests in 2014. The chamber is controlled by 53 Democrats and two Independents who caucus with the majority party.

“Obama now has breathing room among Democrats,” Hudak said.

“He can actually let some of the Democrats who are in tough races off the hook, which has some real electoral implications for those members.”

So see? Maybe we’ll all survive after all.

 

By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, November 25, 2013

November 26, 2013 Posted by | Filibuster, Senate | , , , , , , , | Leave a comment

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