“A Nuclear End To Republican Denial”: Seeing The World As It Is Rather Than Pining For A World That No Longer Exists
Those who lament the Senate Democrats’ vote to end filibusters for presidential nominations say the move will escalate partisan warfare and destroy what comity is left in Congress. Some also charge hypocrisy, since Democrats once opposed the very step they took last week.
In fact, seeing the world as it is rather than pining for a world that no longer exists is a condition for reducing polarization down the road. With their dramatic decision, Senate Democrats have frankly acknowledged that the power struggle over the judiciary has reached a crisis point and that the nature of conservative opposition to President Obama is genuinely without precedent.
What happened on Nuclear Thursday has more to do with the rise of an activist conservative judiciary than with the norms of the Senate. From the moment that five conservative justices issued their ruling in Bush v. Gore, liberals and Democrats realized they were up against forces willing to achieve their purposes by using power at every level of government. When the Bush v. Gore majority insisted that the principles invoked to decide the 2000 election in George W. Bush’s favor could not be used in any other case, they effectively admitted their opportunism. Dec. 12, 2000, led inexorably to Nov. 21, 2013.
Bush v. Gore set in motion what liberals see as a pernicious feedback loop. By giving the presidency to a conservative, the five right-of-center justices guaranteed that for at least four years (and what turned out to be eight), the judiciary would be tilted even further in a conservative direction.
Bush was highly disciplined in naming as many conservative judges as he could. His appointments of Chief Justice John Roberts and Associate Justice Samuel Alito bolstered the Supreme Court’s conservative majority. The court later rendered such decisions as Citizens United, which tore down barriers to big money in politics, and Shelby County v. Holder, which gutted a key part of the Voting Rights Act. Both, in turn, had the effect of strengthening the electoral hand of conservatives and Republicans.
With the conservatives’ offensive as the backdrop, Senate Democrats and liberals on the outside revolted in 2005 against the Republican threat to use the nuclear option when the GOP controlled the Senate. Progressives felt they had no choice but to throw sand into the gears of a juggernaut.
Liberals said things eight years ago that are being used by conservatives to accuse them of hypocrisy now. I didn’t have to look far for an example of what they’re talking about.
In a column in March 2005, I called the GOP’s effort to speed the confirmation of conservative judges “a blatant effort to twist the rules” that ignored “the traditions of the Senate.” I might take back the “traditions of the Senate” line, a rhetorical attempt to call conservatism’s bluff. But what animated my argument then is the same concern I have now: This era’s conservatives will use any means at their disposal to win control of the courts. Their goal is to do all they can to limit Congress’s ability to enact social reforms. At the same time, they are pushing for measures — notably restrictions on the right to vote — that alter the electoral terrain in their favor.
And it is simply undeniable that in the Obama years, conservatives have abused the filibuster in ways that liberals never dreamed of. Senate Majority Leader Harry Reid cited the Congressional Research Service’s (CRS) finding that in our history, there have been 168 cloture motions filed on presidential nominations. Nearly half of them — 82 — happened under Obama. According to CRS, of the 67 cloture motions on judicial nominees since 1967, 31 occurred under Obama. Faced with this escalation, senators long opposed to going nuclear, among them Reid and California’s Dianne Feinstein, concluded it was the only alternative to surrender.
Republicans gave the game away when all but a few of them opposed Obama’s three most recent appointments to the Court of Appeals for the D.C. Circuit not on the merits but by accusing the president of trying to “pack the court.” In fact, Obama was simply making appointments he was constitutionally and legislatively authorized to make. His nominees were being filibustered because they might alter the circuit court’s philosophical balance. The GOP thus demonstrated beyond any doubt that it cares far more about maintaining conservative influence on the nation’s second most important judicial body than in observing the rules and customs of the Senate.
This is why the Senate Democrats’ action will, in the end, be constructive. The first step toward resolving a power struggle is to recognize it for what it is. The era of denial is finally over.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, November 24, 2013
“High On Their Own Supply”: Republicans Marching Into One Well-Prepared Crossfire After Another
Jonathan Strong, writing at National Review Online, explains that the Republicans are wary of doing anything that might distract people from their campaign against the Affordable Care Act. Therefore, Mitch McConnell doesn’t intend to engage in any high-profile retaliatory procedural actions in the Senate. That’s fine with me, but it calls to mind McConnell’s immediate response to the invocation of the Nuclear Option. He took to the Senate floor and declared not that Harry Reid had just done something historical or significant or even abominable, but that Reid was merely trying to distract people from ObamaCare.
I thought that was the oddest response in the world. I expected fire and brimstone and steaming wrath and promises of vengeance, or even impeachment. And I got a mild complaint about Reid trying to change the narrative.
This makes me think that the Republicans are truly on another one of their Moby Dick adventures, like Whitewater, like the White House Travel Office, like Vince Foster, like l’affaire Lewinsky, like Saddam’s WMD, like Fast and Furious, like Solyndra, like the New Black Panther Party, like Benghazi, and like the most recent government shutdown. More than anything, it reminds me of when they convinced themselves not that the presidential polling numbers could be oversampling blacks, but that they were oversampling blacks. It’s like their theory that systematically trying to make it harder for blacks to vote would result in reduced black turnout rather than a black community more determined than ever to cast their ballots.
It’s some variation of stupidity and delusion, with a little evil sprinkled into the mix. And this really is the only area where I find the Republicans unpredictable. I know what they won’t agree to, which makes it easy to offer it to them without fear that they will accept it. “Have some Chained CPI, boys, really, all we need in return is some revenue.”
What I have trouble predicting is their next obsession, and how absurdly far they will take it. These people are still talking about Benghazi. As long as I’ve watched them, I still have to admit that I didn’t see that coming.
Still, their greatest weakness is their predictability. They do not know how to adapt to changing circumstances, nor how to trim their sails when it would be to their advantage. As a result, they march into one well-prepared crossfire after another.
By: Martin Longman, Washington Monthly Political Animal, November 23, 2013
“Real World Consequences”: Why The Senate’s Nuclear Option On Filibuster Reform Matters
If you care about reproductive rights, the environment or worker rights, the decision by Senate Majority Leader Harry Reid and the chamber’s Democrats – including courageous votes by this state’s senators, Mark Udall and Michael Bennet – Thursday to reform the filibuster on presidential appointments matters. A lot.
This is not just inside-the-Beltway jabberwocky. Invoking the “nuclear option” so that a simple, 51-vote majority is all that’s needed to confirm judges below the Supreme Court level and other presidential appointments will have a profound effect on the everyday lives of many Americans. Courts are missing judges thanks to an unprecedented refusal by Republicans to confirm the president’s nominees. This is purely political, not about qualifications: as Senate Republicans have bluntly admitted, all Obama nominees are bad.
And this obstruction has real world consequences both in terms of shorthanded courts and the decisions they make.
So, for example, the 10th Circuit Court of Appeals, which is located here in Denver and handles all federal court appeals for not only Colorado but also Kansas, New Mexico, Oklahoma, Utah and Wyoming, has two vacancies thanks to GOP filibustering. And as Colorado Ethics Watch has noted, 98 percent of all federal appeals are decided at the Circuit Court level, meaning that, “decisions of the 10th Circuit on important issues such as the environment and federal land policy, reproductive freedom, voting rights and money in politics, and civil rights are often final and binding for the states in the Circuit.”
In addition to refusing to act on qualified judges to the 10th Circuit, Republicans have repeatedly blocked qualified judicial nominees to the District of Columbia Circuit Court. Per Ethics Watch, “The D.C. Circuit is a traditional stepping-stone to the U.S. Supreme Court, with four of the current justices having previously sat on the D.C. Circuit. Currently, three of the D.C. Circuit’s 11 judgeships are vacant, including one that has been open since its previous occupant, John Roberts, was confirmed chief justice of the United States in 2005.”
Judicial vacancies and court rulings matter. Without fair courts that have diverse and impartial judges, we won’t have justice when it comes to women’s health and reproductive rights.
To wit, on November 1, with three judicial vacancies thanks to Republican obstruction and no Obama nominees on the bench, the D.C. Circuit Court ruled that the Affordable Care Act’s requirement that employers provide contraception in their health insurance plans violated religious freedom. Denver’s 10th Circuit, with two Republican-blocked vacancies, decided a similar case the same way, setting up a Supreme Court challenge on whether or not women have the right to birth control regardless of their employers’ religious beliefs. This has profound and dangerous implications even beyond reproductive rights: it threatens to upend the very notion of secular labor law. What if an employer decided their religious beliefs meant they didn’t have to pay Social Security taxes, follow wage and hour guidelines, or hire workers of a different race?
So this isn’t some arcane procedural maneuver by the Senate, it’s the end result of the Republican Party refusing to respect a Democratic president. As for the argument from the right that a future Republican majority will use this move against Democrats: Republicans have broken every deal they’ve made so far to avoid the “nuclear option.” There’s little doubt that they’d change the rules anyway if they magically got the majority.
At least this way a Democratic President, Barack Obama, sees that he, his judicial nominees and appointments, and the American people get a bit more justice.
By: Laura Chapin, U. S. News and World Report, November 22, 2013
“Calling-Out Bad Analysis”: False Equivalency And Crocodile Tears
I’m delighted to see that amongst the wailing and gnashing of teeth over the “nuclear option’s” invocation, there’s some robust calling-out of bad analysis and crocodile tears.
WaPo was Ground Zero for “centrist” bemoaning of the terrible partisanship this step would unleash. But Jonathan Chait was having none of it:
The bizarre, defining feature of this argument is that, unlike the crocodile tears being shed by Republicans, the centrist Establishmentarians all take the view that the Republican judicial blockade was completely unacceptable. They argue that the solution to the unacceptable blockade is that, as the Post piously insists, “Both parties should have stepped back and hammered out a bipartisan compromise reform.”
That Republicans did not offer to compromise or in any way back down from the stance the Post calls unacceptable is a fact so fatal to this argument that none of the three [WaPo]writers in any way acknowledges it. I would agree that a 50-vote threshold for lifetime judicial appointments represents a sub-optimal arrangement. It would be better if there were some way for the Senate to filter out extreme nominees without having the power to wantonly blockade a vital court for nakedly partisan reasons. Given the refusal of Republicans to back down, I prefer majoritarianism to the existing alternative. The Establishmentarians refuse to grapple with the trade-off. They are against fires and fire hoses alike.
Unfortunately, now that the “nuclear option” has been officially recorded as the efficient cause of whatever happens next in the descent to partisan polarization, it will become the ever-ready justification for future false equivalency arguments of the sort Chait eviscerates.
An even more interesting deconstruction of today’s wailathon comes from Jonathan Bernstein, writing, as it happens, at WaPo’s Plum Line. He suggests it may have been the “reasonable” Senate Republicans pitching the biggest fits about the nuclear option who precipitated it by their languid-at-best attempts at a preemptive deal, and who may actually welcome it privately because it gets them out of a jam:
The problem with the summer compromise is that it was horrible for deal-making Republicans. The deal essentially said: Republicans will continue to filibuster nominations, but will supply enough votes for almost all of them so that the filibusters will be defeated. But that meant that in practice a handful of Republicans were forced to tag-team their votes, making sure that Democrats always had 60. What’s more, the shutdown fight — which began right after the Senate deal was struck — revealed that radical Republicans led by Sen. Ted Cruz (R-Tex.) were eager to scapegoat those same deal-making Republicans. That raised the cost of the executive branch nominations agreement for tag-teamers such as Sens. Lamar Alexander (R-Tenn.), Bob Corker (R-Tenn.) and John McCain (R-Ariz.). In other words, the summer deal might or might not have been stable, but it certainly couldn’t hold in a world in which the majority of Republican senators are looking for ways to separate themselves from mainstream conservatives, and then using that separation to attack them.
Now Obama gets his judges, and “mainstream conservatives”–especially those like Alexander and Graham who are facing 2014 primary threats–can happily vote against them. What’s not to like?
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, November 22, 2013
“From The Party Of No To The Party Of Oops”: How Republican Intransigence Keeps Backfiring
Exasperated with repeated Republican stonewalling of President Obama’s executive and judicial nominees, Senate Democrats on Thursday went nuclear, striking down two centuries of precedent regarding the chamber’s arcane filibuster rules.
By a 52-48 vote, the Senate voted to allow confirmation of federal judge and Cabinet nominees with a simple majority vote. The move did not, however, change the filibuster rules regarding legislation and Supreme Court nominees.
For Republicans, it was the latest defeat to come as a result of the party’s refusal to engage with their Democratic colleagues on even minor issues. The GOP has earned a reputation under Obama as the “party of no” for its intransigence, which in recent months has proven self-defeating more than once.
Take the filibuster.
For a full year, Senate Majority Leader Harry Reid (D-Nev.) threatened the nuclear option to circumvent Republican inaction. Most recently, Republicans blocked three nominees to the powerful U.S. District Court of Appeals, not because of any qualms with the candidates’ credentials, but merely because they didn’t want Obama filling vacancies on an influential court that tilts conservative.
With the GOP refusing to back down, Reid finally dropped the bomb, ensuring Obama’s nominees could get an up-or-down vote — and, as a bonus, handing liberals a procedural reform they’ve long sought.
“The American people believe the Senate is broken,” Reid said on the Senate floor Thursday, “and I believe the American people are right.”
Outraged Republicans vowed retribution, saying they would use the process to stack future courts in their favor once they’re back in control. Except to do that, they would need to first retake the Senate and White House, which may not be so easy by 2016.
In the meantime, Democrats have a little extra muscle to help Obama staff his administration as he sees fit (which, let’s remember, used to be common practice). That could be immensely important, since House Republicans have shown no interest in dealing with the president on anything substantive like immigration reform.
As New York‘s Jonathan Chait detailed more thoroughly here, “Obama has no real legislative agenda that can pass Congress,” so his “second-term agenda runs not through Congress but through his own administrative agencies.”
With the filibuster tweak, Obama can now more readily advance his administrative agenda — and Republicans allowed that to happen by forcing Reid’s hand on the filibuster. At that point, he didn’t have much choice: Had he set the precedent of allowing the minority party to prevent judicial vacancies from being filled, Republicans would only have been encouraged to do it again.
“Eventually this escalation would have become untenable,” wrote Salon’s Brian Beutler, “and somebody would have had to go nuclear.”
That’s the same argument Democrats made during the government shutdown, another instance of GOP obstinacy backfiring spectacularly. Had Democrats and President Obama acceded to the GOP’s hostage-taking, it would have established a precedent that government shutdowns and threats of debt default were the norm for legislative negotiations.
And by letting Republicans dig in, Democrats reaped the political benefits of seeing the GOP’s approval ratings tank.
The same dynamic could soon play out on health care, too.
ObamaCare face-planted out of the gate, and Republicans have rightly criticized the administration’s extensive failings in implementing it. However, the GOP has yet to offer a credible alternative health-care plan. The party’s playbook for winning the PR battle over the law, outlined Thursday by the New York Times, is heavy on strategy but light on substance.
“Rather than get out of Obama’s path of self-destruction and focus energy on creating and promoting a positive, forward-looking health-care agenda” wrote National Journal’s Ron Fournier, “the GOP has chosen to cement its reputation as the obstructionist party.”
Republicans will keep stepping on rakes if they opt merely for “no” instead of “no, but instead.” And with ObamaCare possibly set to make something of a comeback in the coming weeks, the clock is ticking.
By: John Terbush, The Week, November 22, 2013
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