“They Had A Choice”: Did Frustrated Mainstream Republicans Help Pull The Nuclear Trigger?
The big mystery of today’s majority-imposed rules change in the Senate is: What happened to the deal-making Republicans?
There’s nothing much to figure out on the Democratic side. It was clear to most observers that the three-seat blockade of the D.C. Circuit Court was solidly over the line separating Democratic senators’ individual preference for maintaining the filibuster and their party interest in seating a Democratic president’s choices for the federal bench. Democrats believed that they had no choice but to proceed.
Republicans, however, certainly did have a choice. After all, in the short run, they’re clearly worse off by this change than they would be had they used the filibuster far more selectively. That was enough to get them to compromise the last time this happened. So why didn’t they hold back again?
One possibility is that they simply miscalculated, believing that Senate Majority Leader Harry Reid (D-Nev.) was bluffing. If that was the case, however, they could have backed off at the last second.
A second possibility is that they really wanted to eliminate the filibuster, and that they believed that the cost to the Democrats for pulling the trigger was great enough that it was worth the potential three years of majority-confirmed President Obama nominees. That’s possible, although it’s very hard to believe that voters will care at all, and Republican arguments (court-packing!) did not appear designed to appeal to those who might have been willing to condemn Democrats for a “power-grab.”
So here’s a third possibility. 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.
Those deal-making Republicans did have another option; They could have just abandoned the radicals. But over what principle? After all, the situation here is that it’s the radicals, not the mainstream conservatives, who want to hold up all these nominations. One way to look at what happened today is that the deal-makers were getting out of the way and allowing the radicals to lose. If the outcome is the same — Obama’s judicial picks get confirmed — then why should the deal-makers ask for the blame for it?
We don’t know yet, and perhaps we won’t, but my guess is that the way Cruz and other Republican radicals acted during the shutdown is what explains the difference between a successful deal in the summer and today’s nuclear action.
By: Jonathan Bernstein, The Washington Post, November 21, 2013
“Norms And Rules Are For Suckers”: Don’t Believe The Republican Cries Of Vengeance
So now the Democrats have exercised the “nuclear option,” which is not particularly nuclear. They’ve changed existing Senate rules so that judicial nominations can not be filibustered, but can pass with a majority vote. Over the next couple of days you’ll hear Republicans say that this is the most horrifying power grab since the February Revolution of 1917. They will weep and beat their breasts, lamenting the death of fairness and democracy, predicting all manner of horrors, perhaps culminating in a zombie apocalypse, now that a judge nominated by the president can be confirmed with a vote of a majority of senators. But then, their grief will turn to steely determination. “You shall rue this day!”, they will cry. “Revenge shall be ours!”
And that might sound like a reasonable argument for why this rule change was ill-advised. After all, as Iowa senator Chuck Grassley recently threatened, “So if the Democrats are bent on changing the rules, then I say go ahead. There are a lot more Scalias and Thomases that we’d love to put on the bench.” In other words, without the restraint of the filibuster, the next time Republicans have the White House and the Senate, which will happen eventually, they’ll go hog-wild, appointing the most radical conservatives they can find. But there’s one big reason that argument fails: They would have done it anyway.
Let’s not be naive here. The Republican party of today is not only ideologically radical but procedurally radical as well. They’ve taken virtually every opportunity they could to upend whatever rules and norms stood in the way of them getting what they want. Let’s say that it’s 2017 or 2021, and they’ve won the presidency and the Senate. Can anyone believe that if on this day in 2013 the Democrats decided to keep the filibuster for judicial nominations, Republicans would then do the same out of a sense of fair play? This is the party that over the last five years has filibustered literally every bill of greater consequence than renaming a post office. This is the party that got conservatives on the Supreme Court to upend the Voting Rights Act, then literally within days began passing one law after another to make it as hard as possible for minorities, students, and anyone else likely to vote Democratic to cast their ballots. This is the party that shut down the government in its endless quest to repeal the Affordable Care Act. This is the party that sincerely believes that its opponents are attempting to destroy America, and therefore any tactics are justified in order to stop them.
You can put the start date of this procedural radicalism at the inauguration of Barack Obama, but I’d date it back to the Florida mess in the 2000 election. In case your memory of that episode has faded, the whole election came down to a series of counts and recounts in a state in which the Republican candidate’s brother was the governor and his campaign co-chair was the state’s chief election official. Throughout the weeks that followed, Republicans did things like organize a small riot to intimidate election officials into not counting ballots, and the election was ultimately decided by five members of the Supreme Court who were so shamelessly partisan that they included in their decision an instruction that it could never be used as precedent in a subsequent case. And you know what price the Republicans paid for their ruthlessness? None.
It was then that Republicans realized once and for all that norms and rules are for suckers, and at the end of the day, the only thing that matters is whether or not you win. That belief hasn’t changed, even as the party has grown more ideologically extreme over the last five years. You can make an argument that Democrats should have taken the high road and not changed the filibuster rule today. But if you think Republicans wouldn’t have changed the rule to benefit themselves at the first chance they got—no matter what Democrats did—then you haven’t been paying attention.
By: Paul Waldman, Contributing Editor, The American Prospect, November 21, 2013
“A Right Wing Non-Plan”: Ted Cruz Reveals He’s A Thin-Skinned Wuss, Hypocrite And Policy Lightweight
Sen. Ted Cruz pretends to be a tough guy, but mostly he spends his time trashing Democrats in front of adoring right-wing crowds and conservative journalists. On Wednesday he sat down with CNN’s Chris Cuomo – you didn’t expect him to go to MSNBC, did you? – and showed himself to be incredibly thin-skinned when pressed just a little on how he would replace the Affordable Care Act he wants to repeal. It was an interesting window on Cruz’s temperament as well as his cynical, threadbare “policy” agenda.
Cuomo asked Cruz how he would replace the law he inveighs against, and as usual, Cruz dodged the question and kept on inveighing instead. Cuomo followed up. “You don’t think that you have a responsibility as a U.S. senator to do better than that, in terms of offering a solution for what to do next?” he asked.
And Cruz shot back: “Well, I appreciate your trying to lecture me in the morning.”
Cuomo didn’t leave it there.
“No, no, no, not at all, Senator. I’m worried, same as you, anybody who looks at the situation has worries.”
So Cruz tried to turn the tables. “If you’re worried, did you speak out for the 5 million people who have lost their health insurance?”
Cuomo had an answer: “Absolutely — we’ve been covering it doggedly. The problem is, I don’t have the power to fix it. You do. That’s what a U.S. senator does, is you sponsor law. You know this. It’s not a lecture, it’s a concern; I’m asking, what are you going to do about it?”
Apparently Cruz isn’t used to being grilled. Cuomo got him to share what passes for an answer from conservatives these days: “Let people purchase health insurance across state lines.”
Wow. That’s what Princeton and Harvard Law degrees get you: a warmed-over right wing non-plan that’s been around forever. As Ezra Klein reported back in 2010, the Congressional Budget Office looked at it in 2005 and found it didn’t reduce the number of uninsured and would only save the federal government $12 billion over the next eight years. (By contrast, the CBO says the ACA will reduce the deficit by $41 billion in 2013 alone.)
The CBO also found that allowing people to buy insurance plans across state lines would “make insurance more expensive for the sick and cheaper for the healthy, and lead to more healthy people with insurance and fewer sick people with insurance.” Other than that, it’s a terrific idea.
Of course, insurers like Cruz’s non-plan because it would mean a boon for the states that provide the least regulation and thus encourage the “cheapest” but least protective insurance policies. Rather than insuring states’ rights and competition, which conservatives pretend to like, it would, in effect, create a national insurance-regulation standard, as states then raced to the bottom to compete. Of course, a state’s “rights” usually diminish, for conservatives, whenever that state decides to give its citizens more power and its corporations less.
So in just one morning, Ted Cruz was revealed as a wuss, a hypocrite and a policy lightweight. The last one doesn’t matter on the right, but the first two won’t wear well in a presidential race. Kudos to Cuomo for not accepting Tea Party platitudes as a substitute for governing proposals.
By: Joan Walsh, Editor at Large, Salon, November 20, 2013
“Denying And Ignoring The Realities”: For Some, The Name “Obama” Has Become A Code Word
Racial tensions in the United States have changed since Obama’s election as president, and for the worse. As judicial opinions since 2008 have revealed, both the word “Obama” and the president’s image have become tools for harassing and otherwise discriminating, in the workplace and in places of public accommodation, against blacks and against whites in romantic relationships with blacks.
For instance, while at a company picnic, one white employee sat down next to his co-workers, held a watermelon slice in his hand, and asserted, “I’m going to sit down to eat my ‘Obama fruit.’” In a different court case, a plaintiff complained that the company’s C.E.O. once said he had a “gift for you for all the Obama people outside” — while handing a rifle to another employee. In yet another case, a white employee derided an African co-worker, calling the co-worker “boy,” threatening his life and telling him he should take Obama back to Africa to vote for him.
For other individuals, President Obama’s election has become a basis for denying and ignoring the realities of racism, both conscious and unconscious, in our country. Soon after Obama’s election, conservatives such as Gregory Coleman, a Texas lawyer, argued that the election demonstrated the obsolescence of the Voting Rights Act of 1965 — a point reiterated by the U.S. Supreme Court in its June decision invalidating a section of the act.
In fact, the results from three experiments by Stanford University researchers suggest that endorsing Obama enables some whites to feel more comfortable in favoring other whites at the expense of blacks. The Stanford researchers contended that, for these whites, supporting Obama seemed to reduce their fears about appearing racially prejudiced, giving them the “moral credentials” to exhibit favoritism toward other whites.
At least one case showed this phenomenon affecting the legal process. After admitting that he based his decision in a criminal matter upon the race of the defendant, a white juror later denied his admission. His decision could not have been racially motivated, he argued. Why he was incapable of racial bias? Because, he said, he voted for Obama.
By: Angela Onwuachi-Willig, The Charles and Marion Kierscht Professor of Law at the University of Iowa College of Law, Opinion Pages, The New York Times, November 20, 2013
“The Real Roots Of The Filibuster Crisis”: This Is About Whether Barack Obama Is Legitimately The President Of The United States
We’re about to have ourselves a little filibuster crisis, and the only surprising thing is that it took so long. We’ve now reached a point where Republicans no longer accept that Barack Obama has the right, as president of the United States, to fill judicial vacancies. Unlike in previous battles over judicial nominations, we’re not talking about the nominees’ qualifications or their ideological proclivities. It’s merely a question of the president’s constitutional privileges. Republicans don’t think he has them. This is only the latest feature of a long descent for the GOP away from considering any Democratic president—but particularly this one—as a legitimate holder of the office to which he was elected.
There has never been a president, at least in our lifetimes, whose legitimacy was so frequently questioned in both word and deed by the opposition party and its adherents. Even today, many Republicans, including some members of Congress, refuse to believe that Obama was born in the United States. Right after he was re-elected, 49 percent of Republicans told pollsters they thought ACORN had stolen the election for Obama, a decline of only 3 points from the number that said so after the 2008 election, despite the fact that in the interim, ACORN had gone out of business. Think about that for a moment. How many times have you heard conservatives say that the Affordable Care Act was “rammed through” Congress, as though a year of debate and endless hearings and negotiations, followed by votes in both houses, followed by the president’s signature, was somehow not a legitimate way to pass a law? In short, we’ve seen this again and again: it isn’t just that Republicans consider Obama wrong about policy questions or object to the substance of one or another of his actions, it’s as though they don’t quite accept that he’s the president, and everything he does carries for them the taint of illegitimacy.
If that’s where you’re coming from, it seems perfectly justifiable to upend the norms that have traditionally determined how things work in Washington. One of those norms is that while it’s common to fight against the judicial nominees of a president from the other party, you have to at least have a gripe about each of those nominees. But Republicans are no longer bothering with that. The current argument is about three vacancies on the D.C. Court of Appeals, widely understood as the second most important court in the system, because it deals with many cases concerning government’s powers (four of the nine current Supreme Court justices came there from the D.C. Circuit). Republicans argue that by attempting to fill those vacancies, Obama is engaged in an unconscionable act of “court-packing,” and besides, the D.C. Circuit doesn’t have enough work to do anyway, so the seats should just remain empty.
Until there’s a Republican president, of course! Though they haven’t said so explicitly, here’s a suggestion for Capitol Hill reporters: Next time you’re interviewing a Republican senator who says he’s filibustering these nominations because the D.C. Circuit doesn’t have enough work to do, ask him if he’s willing to make a pledge, right there and on the record, to filibuster any appointment the next Republican president makes to that court. See what he says.
Anyhow, Harry Reid is now threatening to eliminate the filibuster for judicial nominees altogether, something he can do with a simple majority vote. But he’ll need to get 50 of the 55 Senate Democrats to vote for it, and there’s a good deal of reluctance to do so, particularly since Democrats won’t be in the majority forever, and whenever they’re back in the minority they’ll want to have the filibuster for themselves. But according to recent reporting by Greg Sargent and others, Reid thinks he has the votes and is just about ready to pull the trigger if Republicans don’t relent on these three nominees.
But the threat of the “nuclear option” of eliminating the filibuster for nominees could be just a negotiating tactic. The outcome Democrats would probably most prefer is what happened the last time we went through this, in 2005. In that case the controversy was over a group of Bush appointees who were true radicals, none more so than Janice Rogers Brown, who calls the New Deal a “socialist revolution” and says things like, “In the heyday of liberal democracy, all roads lead to slavery.” That controversy ended with an agreement in which Bush got his nominees—Brown now sits on the D.C. Circuit—and Democrats promised to use the filibuster only in “extraordinary circumstances.” In other words, it was a complete win for the Republicans. The biggest difference between then and now is that Democrats never questioned whether Bush had the right to fill judicial vacancies; they had specific objections to particular nominees.
In the various flare-ups of the birther controversy, reporters would occasionally ask Republican members of Congress very basic questions, like “Do you think the President was born in the United States?” The answers were incredibly revealing. Some simply said yes, but others hemmed and hawed, saying things like “It’s not my responsibility to tell people what to think” or “I take him at his word,” as though there were still some doubt. It’s time they got asked the same kind of questions about this crisis. If you asked Republicans, “Does Barack Obama have the right to fill judicial vacancies?”, I honestly have no idea what they’d say. But it would be interesting to find out.
By: Paul Waldman, Contributing Editor, The American Prospect, November 20, 2013
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