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“The No-Mandate Election”: No Matter What Happens In November, Don’t Expect The Gridlock To Go Away

Usually when there’s an election cycle full of passionate intensity and near-universal perceptions of high stakes, the compensation for the teeth-grinding angst is a sense of resolution, with voters answering big questions and providing something of a policy mandate. Yes, 2000 was a muddle because the results themselves were hotly disputed (not that this kept the new Bush administration from behaving as though it had a mandate to cut taxes massively and look for excuses to topple Saddam Hussein to avenge that plot to kill Poppy). But usually we know more about the direction of the country after rather than before Election Day. And we could sure use some public guidance after six years of a Republican Congress making the total obstruction of a Democratic president its central, holy mission.

But the closer we get to November 8, the more that hope seems forlorn. Brian Beutler explains part of the problem:

Trump has completely upended the platonic notion of elections as tools to settle public policy debates. His agenda, such as it is, either can’t or won’t be implemented, even if he wins. Mexico is not going to pay for a wall along the border, and the U.S. government is not going to expel 11 million unauthorized immigrants, much less ban Muslims from entering the country. It is altogether more likely that were he to win, the movement conservatives who still control Congress would present him the kind of plutocrat-friendly legislation that alienated their voters and drove them to Trump in the first place. His supporters would be rewarded for their triumph with a vision of change they don’t share and didn’t vote for.

In the likelier event that Clinton wins, but does not secure majorities in both the House and Senate, the public will have rejected Trump’s ugly vision of a resentful, bigoted America, but will not see that verdict translated into any policy changes that reflect Clinton’s vision of a more inclusive, cosmopolitan society.

But it’s actually worse than that. If Trump loses, what Barack Obama used to call “the fever” of conservative extremism won’t “break,” for the simple reason that the keepers of the ideological flame loathe Trump as a heretic and won’t for a moment accept responsibility for anything about his campaign. The lesson many of them would “learn” from a Trump loss is the same they “learned” from McCain’s loss in 2008 and Romney’s in 2012: Only a rigidly orthodox conservative GOP can win national elections.

If, somehow, Hillary Clinton loses, it’s unclear Democrats will “learn” much of anything, either, other than the peril of going into a competitive election with a nominee who has high unfavorable ratings fed by decades of conservative attacks. There is no way a defeated Hillary Clinton runs again in 2020, and the most obvious alternative this time around, Bernie Sanders, will be pushing 80 by then. And there’s nothing about this campaign that suggests Democrats would be open to much cooperation with President Trump.

Now, should things go the opposite way with a solid or spectacular Clinton win and a Democratic conquest of both houses of Congress, there’s a chance things would open up. But as Barack Obama’s experience in 2009 demonstrated, it would almost certainly require not only a workable majority in the House but a majority in the Senate willing to undertake radical filibuster reform (at least for Supreme Court nominations, though possibly for regular legislation). And the window for accomplishing anything would be narrow: If Democrats hang on to the White House this year, 2018 would likely shape up as another GOP midterm landslide (especially in the Senate, where the landscape will be insanely pro-Republican then).

The kind of atmosphere we are more likely to see was, interestingly enough, described by Hillary Clinton herself in her recent interview with Ezra Klein:

“A lot of governing is the slow, hard boring of hard boards,” she says. “I don’t think there’s anything sexy, exciting, or headline-grabbing about it. I think it is getting up every day, building the relationships, finding whatever sliver of common ground you can occupy, never, ever giving up in continuing to reach out even to people who are sworn political partisan adversaries.”

No wonder so many Democratic primary voters thrilled to Bernie Sanders’s talk about a grassroots-driven “political revolution” that would make this “hard boring of hard boards” unnecessary. It would be nice if an election cycle or two could mobilize a previously hidden majority and sweep away all of the gridlock. Ideologues of both flavors (Ted Cruz along with Bernie Sanders) endlessly fantasize about this magic solution; the fact that it’s equally plausible for people in both parties is a pretty good sign it’s an illusion. So any way you slice it, 2017 is likely to feel familiar, and frustrating.


By: Ed Kilgore, Daily Intelligencer, New York Magazine, July 13, 2016

July 13, 2016 Posted by | Donald Trump, Election 2016, Gridlock, Hillary Clinton | , , , , , | Leave a comment

“A Culture Of GOP Obstruction”: When Basic Governance Is Deemed Controversial

The U.S. Court of Appeals for the District of Columbia Circuit, widely seen as the nation’s second most important federal bench, has three vacancies. President Obama yesterday introduced three non-controversial nominees to fill those vacancies. And were it not for the breakdowns of the American political process, none of this would be especially interesting.

But here we are.

Senate Republicans have come up with lots of reasons for not wanting to advance President Barack Obama’s nominees to the powerful U.S. Court of Appeals for the D.C. Circuit, whether it be false accusations of “court-packing” or claims that the court doesn’t need its three vacancies filled because it’s not busy enough.

On Tuesday, Senate Minority Leader Mitch McConnell (R-Ky.) argued there was another problem with moving Obama’s nominees: a “culture of intimidation” being fueled by Democrats.

Sen. Lamar Alexander (R-Tenn.) went further, responding to the nominees by telling reporters, “There is no basis for the president inventing these crises. It’s unpresidential. It’s embarrassing to me.”

Just so we’re clear, we’ve apparently reached the point at which a president nominating judges to fill existing vacancies is seen by Republicans as outrageous. They not only decry “court packing” — a phrase they use but clearly do not understand — they also feel “intimidated” and “embarrassed” by a basic governmental process outlined by the Constitution.

Indeed, according to Lamar Alexander, Obama is creating a “crisis.” Worse, it’s “unpresidential” for the president to exercise his presidential duties. I realize it’s a little unusual for the White House to introduce three judicial nominees at once, but this GOP freak-out is excessive by any sensible standard.

But, Mitch McConnell says, there’s no reason for Democrats to complain. “You know, we’ve confirmed an overwhelming number of judges for President Obama,” the Minority Leader told reporters yesterday. “So the president’s been treated very fairly on judicial [nominees].”

Is this true?

Greg Sargent took a closer look.

It is not easy to conclusively determine whether GOP obstructionism is unprecedented. But there are some data points we can look at. For instance, Dr. Sheldon Goldman, a professor of political science at the University of Massachusetts who focuses on judicial nominations, has developed what he calls an “Index of Obstruction and Delay” designed to measure levels of obstructionism. In research that will be released in a July article he co-authored for Judicature Journal, he has calculated that the level of obstruction of Obama circuit court nominees during the last Congress was unprecedented.

Goldman calculates his Index of Obstruction and Delay by adding together the number of unconfirmed nominations, plus the number of nominations that took more than 180 days to confirm (not including nominations towards the end of a given Congress) and dividing that by the total number of nominations. During the last Congress, Goldman calculates, the Index of Obstruction and Delay for Obama circuit court nominations was 0.9524.

Goldman told Greg, “That’s the highest that’s ever been recorded.” He added, in reference to the most recent Congress, “[I]t is unprecedented for the minority party to obstruct and delay to the level that Republicans have done to Obama in the 112th Congress.”

The Congressional Research Service also found (pdf), “President Obama is the only one of the five most recent Presidents for whom, during his first term, both the average and median waiting time from nomination to confirmation for circuit and district court nominees was greater than half a calendar year (i.e., more than 182 days).”

It appears that by objective standards, McConnell’s boasts have no basis in fact. Imagine that.

Nevertheless, the Minority Leader yesterday refused to commit to allowing the Senate to vote up or down on the new nominees, not because he can think of something wrong with them, but because he thinks the D.C. Circuit isn’t busy enough to need filled vacancies.

With each passing day, the “nuclear option” becomes more viable.


By: Steve Benen, The Maddow Blog, June 5, 2013

June 7, 2013 Posted by | Federal Courts, Politics | , , , , , , , | Leave a comment

“Chuck Grassley’s Pretext”: Why The GOP Is So Obsessed With Three Little Judges

It’s beginning to feel a bit like 1937 in Washington this week as the White House and Senate Republicans hurl allegations of “court-packing” up and down Pennsylvania Avenue at one another. The what — Republican obstruction of Obama’s nominees to fill three vacant seats on the powerful D.C. Circuit Court of Appeals — has been widely and well covered elsewhere. What bears further explanation is the why. It goes without saying that the GOP has an interest in blocking Obama’s nominees in general; the fewer judges the president appoints, the less liberal the courts overall. But why do they care so much about these three particular nominees — who haven’t even been named yet — that they’re willing to risk triggering a “nuclear war” on filibuster reform while also trying to change the basic makeup of the court.

First, there’s the numbers. Right now, Republican appointees have an effective 9-5 majority on the D.C. Court. There are only 11 “active” seats, but another six judges serve as a sort of auxiliary corps in a semi-retirement status where they participate in cases as needed. With three vacancies on the active bench, these “senior” judges are needed often. Of all the judges, three were appointed by George W. Bush, two by George H.W. Bush, and four by Ronald Reagan, compared to just three by Bill Clinton, and one by Jimmy Carter. Until last week, when the Senate finally confirmed Sri Srinivasan, Obama had made zero successful appointments in over four years, despite the vacancies, thanks to GOP obstruction.

“That’s what this is about. It’s that the court is already packed in favor of Republican judges,” Judith Schaeffer, the vice president of the Constitutional Accountability Center, told Salon.

Second, the stakes couldn’t be higher. With near-exclusive purview over federal government action, the D.C. Circuit will be a critical battleground in legal challenges against everything from the Affordable Care Act to new EPA regulations to curb greenhouse gas emissions, not to mention labor policy, gun safety regulations, Wall Street reform, national security issues, campaign finance, voting rights, and much more. With Congress deadlocked, executive action has become an increasingly important tool for the Obama White House, and the D.C. Circuit is where people trying to stop those reforms will mount their fights. Already, the Republican majority on the court has rolled back a major EPA air pollution rule, curbed Obama’s recess appointment powers and hamstrung the National Labor Relations Board.

Outside of the House of Representatives, the court is one of  the most important roadblocks to Obama’s agenda. Obviously, Republicans would like to keep it that way.

But now, the White House is reportedly planning to push through three nominations simultaneously in an effort to overcome GOP filibusters. Republicans have filibustered plenty of nominees, but they pounced on this plan with unusual vigor and a unified message. Sen. Chuck Grassley, the Judiciary Committee’s top Republican, called this scheme “court packing.” Senate Minority Leader Mitch McConnell said the White House is trying “to pack the D.C. Circuit with appointees.” Utah Sen. Mike Lee, a constitutional lawyer hailed by conservatives for his legal smarts, also invoked the term.

It’s a little disturbing to think that three of the Senate’s top Republicans on judicial matters have no idea what court packing is, but that’s what we’re lead to believe if we assume they’re being honest in their charges. FDR tried to “pack” the Supreme Court in 1937 by dramatically expanding its size, so he could appoint more justices who agreed with him. Court packing involves trying to change the rules of the game in your favor. Obama is following the rules set forth by the Constitution and Congress by aiming to fill three already vacant seats. To accuse Obama of court packing is plainly ridiculous.

Now, wouldn’t it be ironic if Grassley and his colleagues were in fact the ones who wanted to change the rules of the game? As it turns out, they do. Grassley wants to eliminate the three vacant seats from the court entirely, thus cementing the current Republican majority indefinitely. This is the plan that has led the White House to turn the “court packing” allegation back on Republicans, as White House senior adviser Dan Pfeiffer did in a blog post today. “[O]n the merits, Senator Grassley’s ‘court unpacking proposal’ fails to make any sense,” the Obama aide wrote.

Grassley’s argument — or pretext, depending on where you sit on the political spectrum — is that the D.C. Circuit is underworked, because it sees fewer cases per judge than other appellate courts. Eliminating each judgeship would save $1 million per judge per year. Million with an “m” — a pretty puny amount of money when it comes to government.

Critics, meanwhile, see Grassley’s plan as little more “pure partisan hypocrisy,” as Schaeffer said, predicated on an erroneous assumption about the court’s workload. Currently, the D.C. Circuit has 120 pending cases per authorized judgeship, which Grassley says is too few. But under George W. Bush, Grassley voted to confirm two judges when the court had just 109 cases per judge.

And everyone agrees the cases the D.C. Circuit deals with are far more complicated than those seen on other circuits, so you can’t really compare the numbers. “There is cause for extreme concern that Congress is systematically denying the court the human resources it needs to carry out its weighty mandates,” wrote Pat Wald, who was the chief judge on the D.C. Court of Appeals, in the Washington Post.

You don’t have to be a federal courts scholar to see the stakes here, or the politics at play, but they’re probably hoping only scholars will pay attention.


By: Alex Seitz-Wald, Salon, May 30, 2013

June 1, 2013 Posted by | Federal Courts, Politics | , , , , , , , | Leave a comment

“Rejecting The 60-Vote Senate”: Vote Your Conscience On Merits Of Bills, Don’t Vote Against Allowing A Vote

In discussing the handful of senators—quite a few of them Democratic—who hold the fate of gun legislation in their hands, WaPo’s Greg Sargent makes a crucial point that is all too often forgotten:

it needs to be restated that these Senators have the option of voting Yes on breaking the filibuster, while voting No on the final vote. In that scenario, the proposal would likely pass with a simple majority. And so, if these Senators continue to hold out, they need to be pressed on whether they really think a proposal that has the support of eight in 10 Americans doesn’t deserve a straight up or down vote, at a time when the Newtown slayings have focused public attention on a problem that continues to claim the lives of thousands of Americans per year. Whatever their final vote, there’s no excuse for them to enable and participate in GOP obstructionism of a proposal with near universal public support.

Amen to that. But I’d go further, as I argued at The Democratic Strategist back in 2009

My personal feeling is that supporting a filibuster against your own party and your own party’s president should be treated as a serious and rare measure on major issues of conscience where the sacrifice of some of the prerogatives of seniority are a small price to pay. So maybe that price really should be paid. But at a minimum, the practice of thinking of cloture votes as identical to substantive votes, and tolerating defections on the former as just the same as the latter, needs to come to an end. There is no sixty-Senate-vote requirement for the enactment of regular legislation in the Constitution or in the Senate rules. We don’t need lockstep Democratic unity on policy initiatives. We just need unity on the simple matter of allowing the Senate to vote.

If we are not going to have genuine filibuster reform—and apparently we aren’t so long as Harry Reid is the Democratic leader in the Senate—then at least Reid and others, including the president, should begin making this distinction in every communication with or about senators on significant legislation: vote your conscience on the merits of bills, but don’t vote against allowing a vote, or there will be consequences.


By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, April 16, 2013

April 17, 2013 Posted by | Gun Control, Politics | , , , , , , | Leave a comment

“Revenge Of The Nuts”: Republicans Threaten To “Shut Down The Senate” Over Filibuster Reform

In response to Senate Majority Leader Harry Reid’s plan to reform the rules governing filibusters, Senate Republicans are threatening the highly ironic revenge of “[shutting] down the Senate.”

Manu Raju reports in Politico that Reid is considering a ban on the use of filibusters on “motions to proceed,” the process through which debate begins in the Senate. Reid also may reinstitute rules requiring filibustering senators to take the Senate floor and carry out a nonstop talking session (as in the famous movie Mr. Smith Goes to Washington.)

In order to change these rules, Raju reports that Reid may invoke the so-called “nuclear option,” using an obscure rule to change the Senate rules with just a 51-vote majority instead of the usual two-thirds. The Republican response has been furious:

Republicans are threatening even greater retaliation if Reid uses a move rarely used by Senate majorities: changing the chamber’s precedent by 51 votes, rather than the usual 67 votes it takes to overhaul the rules.

“I think the backlash will be severe,” Sen. Tom Coburn (R-OK), the conservative firebrand, said sternly. “If you take away minority rights, which is what you’re doing because you’re an ineffective leader, you’ll destroy the place. And if you destroy the place, we’ll do what we have to do to fight back.”

“It will shut down the Senate,” the incoming Senate GOP whip, Texas Sen. John Cornyn, told POLITICO. “It’s such an abuse of power.”

There are two major problems with the Republican response: first, Reid’s proposal would not threaten “minority rights” as Coburn asserts. Senators would still be allowed to filibuster after the debate begins, and — as long as they’re willing to stay on the floor and keep talking — they would still be allowed to indefinitely delay a vote unless stopped by a 60-vote majority.

Second, threatening to “shut down the Senate” is a perfect example of why filibuster reform is needed in the first place. Since Democrats claimed their Senate majority in 2007, they have had to overcome over 380 filibusters, more than at any other point in history. As Minority Leader Mitch McConnell famously explained, Senate Republicans’ only goal over the past four years has been blocking President Obama’s agenda, and to do so they have brought the Senate to a near-complete standstill by requiring a 60-vote supermajority to pass any legislation.

So John Cornyn’s threat that Senate Republicans will suddenly stop cooperating with Democrats and block any progress in the Senate shouldn’t concern Reid very much. After all, it would be nothing he hasn’t seen before.


By: Henry Decker, The National Memo, November 26, 2012

November 27, 2012 Posted by | Politics, Senate | , , , , , , , | 1 Comment

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