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Democratic Filibuster of Gorsuch, Trump’s Supreme Court Nominee

2017 April 3

So, the Democrats now have 41 votes against, meaning Gorsuch can’t pass without changing the Senate rules to allow majority votes (a.k.a. to remove the filibuster on supreme court nominees, the “nuclear option.”) The Democrats removed the filibuster on non-supreme court nominees some years back, and came to regret not removing it all on nominees when the Republicans refused to pass anyone nominated by Obama, denying Democrats a majority on the Supreme Court.

“The next President should decide.”

Republican leadership has said that they will, in fact use the nuclear option.

I’m ok with this. The filibuster is anti-democratic. The Founders put in checks and balances, but they didn’t intend that if one party had control of all branches of government they couldn’t do what they wanted, subject to the Constitution.

(Related: The two-term limit on Presidential terms is a vastly bad idea and anti-democratic as well.)

Republicans want an excuse not to pass some of the crap that the House passes on to them, so they are talking about not removing the filibuster for legislation, however. (Yes, this is dodging responsibility.)

Subject to the constitution, written and unwritten, people should get who and what they voted for, and if politicians betray voters, their responsibility for doing so should be clear.

So, yeah, losing the filibuster will make Americans worse off. So be it. Democracy without responsibility is not democracy and the filibuster has just as often been used to stop good things and people as bad.

(Also, if the nuclear option is not used, Democrats should filibuster every Trump nominee, saying “the next President should decide.”)


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34 Responses
  1. Creigh Gordon permalink
    April 3, 2017

    Democrats eliminating the filibuster for SC nominations wouldn’t have helped Merrick Garland, since Republican leadership simply refused to hold hearings or schedule a vote.

  2. bruce wilder permalink
    April 3, 2017

    Procedure matters quite a lot to making deliberative bodies function in a stable and consistent way and I would not discount the importance of even arcane details. But, super majorities make little sense. The separation of powers tests the ability to hold together factional coalitions well enough without creating holdup opportunities that will be often abused.

    The filibuster over the last ten years became a means by which the neoliberal faction dominating the Democratic Party escaped responsibility for their feckless service to their donors instead of their voters. Good riddance.

  3. The Stephen Miller Band permalink
    April 3, 2017

    I think supreme court justices should be chosen via a lottery. It’s a perfect solution that completely circumvents the paralyzing partisanship. The lottery will consist of 20 candidates, 10 allotted to each party, whose names are thrown into the hat and one is chosen via a random process — I suggest with the ping pong ball mechanism used by many state lotteries.

  4. Arthur permalink
    April 3, 2017

    What this mess tells me is that republicans know how to use power. When Obama and Reid had the chance to drop the hammer they ran away like Nancy boys. I guess the question is why?

    By the way, the Dick Smothers character in the great film ‘Casino’ is base on Mr. Reid. He doesn’t come too well.

    Take care, all.

  5. Arthur permalink
    April 3, 2017

    He doesn’t come off too well. Sorry about the missed word.

  6. StewartM permalink
    April 3, 2017

    Chris Bowers reported on a historical analysis on the old OpenLeft site that concluded that filibusters help conservative/republicans much more so than progressives/Democrats. As there will always be more conservaDems/”moderate” Dems who will defect than “liberal” Republicans, it effectively only takes 54 Republicans to override a filibuster promoted by progressives, while it takes 73 “Democrats” to override one mounted by conservatives.

    So if the Republicans do nuke the filibuster, good riddance. They’d be smarter to forgo this victory.

  7. Tom W Harris permalink
    April 4, 2017

    From Arthur:

    When Obama and Reid had the chance to drop the hammer they ran away like Nancy boys. I guess the question is why?

    They run away because they’re corporate rent boys. They’re paid gate-keepers – The Washington Generals of Washington.

  8. April 4, 2017

    This is not important – it is a pseudo-. The is no actual limit on judges.

  9. The Stephen Miller Band permalink
    April 4, 2017

    You’re right, Stirling, it’s not as important as the following. It is as great a threat to even the feigning semblance of democracy as anything else.

    One would think Daesh would want this guy’s head, but instead Daesh wants the heads of The Little People like the cowards they are. Funny that. So too do Trump’s minions — they like bullying The Little People too. No wonder they’re a match made in heaven.

    Why is this bastard and his fellow war criminals not behind bars? As long as he’s not and those like him, the steady march to autocracy in America will continue unabated. He’s a symbol at this point.

    Mark my words. At the current pace, within a decade private armies like this will be murdering American citizens on American soil on behalf of The Rich and there will be nothing any of us can and will do about it. It’s coming and politics as usual isn’t going to prevent it.

    Blackwater Founder Met With Putin Rep on Trump’s Behalf

  10. Tom permalink
    April 4, 2017

    Civil War is inevitable now in the US. Fuck it, we deserve it.

  11. Ivory Bill Woodpecker permalink
    April 4, 2017

    Civil War is inevitable now in the US. Fuck it, we deserve it.

    Speak for yourself, Bitchslap Boy.

    I unabashedly think I deserve much better than what I have gotten from the voting patterns of my stupid fellow white folks.

    If not for their expertly-conditioned, Pavlovian-reflexive hatred of non-white folks, I could be living in a comfy Scandinavian-style welfare-state hammock now.

    My stupid fellow white folks are willing to forgo those comforts for themselves, just to make sure the hated N-people don’t get any of them.

    To conflate Mencken with Michael Moore, democracy is the theory that stupid white folks know what they want–and deserve to get it, good and hard.

    The trouble with that, of course, is that those of us who deserve better also get what the stupid white hate-addicts deserve.

  12. Ivory Bill Woodpecker permalink
    April 4, 2017

    *sigh* I can haz edit feechur, plz? 🙄

  13. realitychecker permalink
    April 4, 2017

    A remarkably revealing interview segment was to be seen on Morning Joe this morning, as they interviewed Senator Sheldon Whitehouse as he was attempting to paint the Dems as the champions of the little people against the monstrous big corporations.

    I don’t have any talent for making links, but I promise it is worth the time to watch, as it is immensely illuminating. (Shorter Whitehouse: We don’t suck the corporate dick with as big a smile as the Republicans do, but we suck it just as hard and just as long.”)

    Anyone who watches that segment and does not come away understanding that the Dems must be destroyed, well, all I can say is, “brain damage happens.”

    It’s not about Dems vs. Repubs, people, it’s about regular people vs. the big corporations, and understanding that the corporations have already pretty much locked up the future for their benefit.

    The big moral issue of our time is, who should be doing the dying?

  14. Keith in Modesto permalink
    April 4, 2017

    Here it is again, talk of an inevitable civil war in the U.S. How serious is this talk? How can one prepare for such a thing? It sounds like indulging in disaster fantasy, but it worries me.

  15. Tom permalink
    April 4, 2017

    @Ivory Bill Woodpecker

    Everyone deserves better, but racism is not the cause of this mess. The greed of the elites is, and they have made all attempts at democratic change impossible.

    So since peaceful change is not possible, violent change is inevitable. After all Gays didn’t start getting rights till they rioted at Stonewall and started using or making credible threats of violence.

    When blacks ceased threatening violence in the 90s to secure their rights, police repression went back up.

    The Rust Belt has seen the rest of the country abandon it, and now their hope in Trump is fading away.

    Elections are no longer starting to matter either. All its going to take is a spark, one outrage too many, and shit will fly.

  16. nihil obstet permalink
    April 4, 2017

    The filibuster as practiced over the last few decades is simple corruption. There is an argument that a deliberative body should allow members to speak to a topic as long as they claim to have something to say, subject to a super-majority closure. Like any other procedural rule, this opportunity to persuade at length can be used for other legislative purposes, and that use was called “filibuster”.

    But our pampered, accountability-dodging senators decided that even pretending to speak was just too onerous for them, so they’d simply change a defensible procedure into an anti-democratic requirement for a super-majority. No speaking, no attempts at persuasion, no deliberation, merely super-majority headcount. And that, in a democracy is corruption. There is no honest argument whatsoever for the current cutesy “filibuster”.

  17. Willy permalink
    April 4, 2017

    I observed long ago that elite positions are not usually earned, but taken. Whenever I hear about most of the new rich and powerful in communist-turned-capitalist regions being friends and family of ranking former communist party members, I think of nepotism in America as well. (Manchin-Bresch is a good example) Cronyism is a universal human trait. These are the people who want more freedom to be able do their self-serving thing, who in power wind up creating a system that feels to everybody else like reverse-meritocracy, regardless of the prevailing political dogmas. These are the ones who need to be attacked. But how to convince those who’ve been manipulated into always ‘blaming the other side’?

  18. Webstir permalink
    April 4, 2017

    Keith in Modesto said: “Here it is again, talk of an inevitable civil war in the U.S. How serious is this talk? How can one prepare for such a thing? It sounds like indulging in disaster fantasy, but it worries me.”

    I wouldn’t worry too much, because, I wouldn’t worry about a bunch of fat, lazy, opioid addicted, armchair warrior white dudes suddenly finding the motivation to do much more than beat their wives and “virtue signal” their lost masculinity.

    I live in N. Idaho in the center of the “Redoubt” movement. I work with a tinfoil hat wearing “Oathkeeper.” He’s a fat little urbanite that moved here to be with his “people.” Loves to run his mouth and talk about how it’ll all be over for us “liberals” once the shooting starts. He owns a bunch of guns, but can’t shoot his way out of wet paper bag. Like most urbanites, he’d be dead inside of two weeks if the shit ever really hit the fan. Seriously, all the shooting talk is just the “virtue signaling” opposite of a liberal buying a Tesla.

  19. Brian permalink
    April 4, 2017

    Agree it should go because it’s undemocratic, But in addition, McConnell and co have made clear they’ll get rid of it if the Dems actually try to use it. If you can’t actually use it for real without losing it, then you don’t really have it anyway.

    Might as well dispense with the fiction and deprive the GOP of the “obstructionist Dems” talking point.

  20. Willy permalink
    April 4, 2017

    @webstir
    And now you too, can become somebody (maybe even a real man?), regardless of how fat drunk and stupid you really are. Buy your manly-man freedumb kit today. Comes complete with guns and freedomjesus tee shirts. Besides, what’s in the other guys kit? A pink kwanzaa sweater and an incomprehensible economic book telling you that your job is going away for the best?

  21. StewartM permalink
    April 4, 2017

    @nihil obstet

    But our pampered, accountability-dodging senators decided that even pretending to speak was just too onerous for them, so they’d simply change a defensible procedure into an anti-democratic requirement for a super-majority.

    Yeah, you could easily keep the filibuster in a fashion. Make ’em talk, make ’em keep other business off the floor. Dispense with the need for a quorum, and make the requirement be that there be 40 ‘debate to proceed’ votes on the floor at all times for the filibuster to continue instead of needing 51 votes for it to end. That way, it’s the minority, not the majority, that would need to sleep on cots in the chamber, be unable to meet with donors, and be unable to go on the TV shows.

    Now, if a minority really thinks that the Republic would end if a particular bill passed, if there was genuine and widespread popular pressure against that bill, etc., a minority might do this. But as a strategy to “block everything” it’s too painful to implement.

  22. Keith in Modesto permalink
    April 4, 2017

    I don’t find the idea that it’s only a “bunch of fat, lazy, opioid addicted, armchair warrior white dudes” talking about civil war a bit reassuring. Maybe such people are the only one’s “talking tough” (maybe, maybe not), but that doesn’t mean that other less stupid and lazy people might be thinking about it. And you don’t have to be a genius to figure out that U.S. society offers nothing but more pain and punishment for ordinary people, and that neither mainstream party is on our side.

    I’m worried that our elites might be either a) too stupid to give working people reason to keep working in the system [as in an “American Dream” that works again for working people again] or b) are so confident in the new technologies of surveillance [AI crawling social media and financial records, an “internet of thing” decked out with sensors listening in on everyone] and repression [armed drones, more capable robotic weapons platforms] that they think rebellion is no longer possible, so no reason to throw the proles any crumbs anymore.

  23. April 4, 2017

    The dumb ones are too stupid to find new – anything. If you want new things, then you need to stop watching television and reading covered books – because those are elite productions.

  24. bruce wilder permalink
    April 4, 2017

    For a real civil war, we would need a sharp geographic divide with forced points of contact. We do not have either, at least not within the U.S. itself.

    The mainstream elite promotes globalism, which means a mainstream culture and economic system permeates not just the U.S., but much of the world.

    We are witnessing a rising tide of political violence in the U.S., a trend I would expect to continue at least thru 2020. And, many large parts of the world system centered on the U.S. are under unbearable financial stress: the Eurozone & China most notably though India or South America might also spin off into economic chaos. That stress at the periphery means artificially increased stability at the center . . . until it doesn’t.

    Rather than civil war in the U.S. per se, I would look for some kind of imperial collapse on the periphery. Jeff Sachs is calling for U.S. withdrawal from the Middle East. Britain is feeling war fever over Gibralter, while the whole of the Czech Republic wants revenge today for a death of a Czech ex-pat in London, which has gone unpunished by law. The turmoil in China continues to build and Italy’s banks stumble toward collapse.

    The good hegemon is dead.

    Two or three, maybe even five or six years down the line, the U.S. will begin to feel the economic effects as the flow of tribute inflating the U.S. standard of living peters out and reverses. The premiums on ip and distribution commanded by U.S. corporate giants may begin eroding at an accelerated rate. The disinvestment that has fueled top income growth will run out.

    The new era of economic nationalism has begun already, but the motivations for it will multiply.

  25. Ivory Bill Woodpecker permalink
    April 4, 2017

    What Webstir said. I’m not losing any sleep from fear of Bitchslap Boy’s “inevitable” violence.

  26. Hugh permalink
    April 4, 2017

    With reality checker, I recommend the Sen. Whitehouse implosion on Morning Joe. The segment illustrates the difficulties of taking a principled stand when you don’t really stand for anything. So Whitehouse was going off on how rich powerful individuals had gotten the Republicans to stack the Court and won self-serving decisions like Citizens United that gave them the government when Scarborough pointed out that Hillary (and he could have said Chuck Schumer, D-Wall Street, as well) were about as in the bag to the rich as you could get. Much sputtering followed.

    Just to be clear Gorsuch is a bought and paid for creep in a three-piece suit who like pretty much everyone else on the Court pretends that he will be fair and objective when, in fact, he will decide cases based on his ideology, which happens to be movement conservative, anti-abortion, anti-the little guy, and very corporatist. He will then cite whatever case law his clerks can dig up to support his biases. He will then, much like Roberts, mumble something about respecting stare decisis and then seek to overturn every precedent in sight. Everyone knows this. The Supreme Court has been a noxious nest of vipers in bath robes for the whole of the country’s history with the possible exception of the twenty years which comprised the Warren Court and its aftermath (or from Brown 1954 to Roe 1973).

    The Senate itself is anti-democratic. The majority of Americans live in just 9 states and are represented by 18 Senators while the other slightly less than half have 82 Senators. So spare me all the big state/little state BS. This is so unrepresentative that it is more like a system of rotten boroughs.

    BTW most of the business of the Senate occurs via suspensions of Senate rules, i.e. unanimous consents. And most of the time very few Senators are on the floor while the Senate is in sesssion. If you want to stop the business of the Senate, a handful of Senators could do so very easily simply by noting an absent of a quorum and objecting to all unanimous consents. And if you have a good parlementarian, you can raise points of order ad infinitum. You can also run real filibusters and/or bring up thousands of amendments to any legislation and/or call for role call votes on all votes. There are lots and lots of weapons if say the Democrats want to use them. If the Republicans went nuclear, the Democrats could respond. But this is where the kabuki nature of these proceedings comes in because the Democrats will only mount an opposition which they know they will lose.

  27. Dave permalink
    April 5, 2017

    The Democrats should force the GOPs hand. Then, after they’ve retaken the Senate down the road (perhaps not that far, even), the Republicans won’t have the filibuster in their toolbox. And the Democrats won’t have one of their usual excuses for not governing.

    Perhaps the GOP will see this logic and withdraw Gorsuch’s name if the Dems take a stand, but I doubt it given the fervor that the core conservative voter feels with regard to controlling the SC. Plus, the GOP might see that the Democrats could just take the game up a level and filibuster every Trump nominee, keeping the Court at 4-4 until after the next election. That’s certainly what I’d like to see them do. The GOP has played a ruthlessly selfish game now for many years, but hijacking Obama’s power to nominate was the last straw.

  28. Steeleweed permalink
    April 5, 2017

    Majority, Super-majority, filibuster (both meanings apropos here), etc.? Maybe the issue is that Democracy – like any political system – has shortcomings and weaknesses and when the polity has to engineer workarounds to deal with the faults, people get bent out of shape. Why? Because Democracy is promoted as if it were perfect and we don’t want to admit, much less face and deal with its imperfections.

    And @Arthur – perhaps the ‘missed word’ Freudian slip?

  29. Webstir permalink
    April 5, 2017

    @Willy-
    That’s a good one. Don’t think I for a second that I haven’t already thought about taking their money by marketing a bunch of survivalist garbage. All you have to do is associate the word “Redoubt” with the product and they will swarm on it like flies to stink.

  30. Peter permalink
    April 5, 2017

    @Web

    Andre Vltcheck’s essay at CP on 2/10 ‘The West is Finished’ discusses why there will be no Left revolution or even civil war in the US. You seem to be responding to the warnings issued by individual citizens about the snowflakes and their minders attempts to undermine and even overthrow the Republic which has attracted warnings from Trump supporters and even some more liberal minded people.

    You seem to be trying to stereotype anyone who gives stern warnings to snowflake coup plotters as being part of some white supremacist survivalist cult. I don’t know how much the Prepper movement has spread but it doesn’t have crazy leaders, it’s organized horizontally. Many of them have military training so they know useful tools from the garbage that you will probably lose money trying to sell to them. Some of the political conclusions made by some of these people seem to miss the mark. This is especially true when they confuse Clintonite centrists liberals with the Left or what’s left of it the US.

  31. Webstir permalink
    April 5, 2017

    @Peter:
    Where do you live Peter?
    I live in the middle of it. My partner and I are the only two lawyers in a huge geographic area containing around 25 to 30 thousand people. I rub shoulders with the demographic of which I speak every day. I listen to the racist jokes. I hear their problems, deepest secrets, and ambitions every day. I listen to their crackpot conspiracy theories and fucked up ideas about the constitution. I teach them advanced concealed carry.

    Trust me — I know better than anyone commenting on here about the “crazy” going on in the prepper movement. And hey, I get it. I’m working toward the same thing actually. Totally agree with JH Kunstler. But preparing for the day when the world goes to shit doesn’t necessarily have to involve being a fucking tinfoil hat wearing wing-nut. Stereotype? Sure, call it whatever you want. But I see it every damn day. Every. Damn. Day.

    And Peter, in closing, come on up to N. Idaho this summer and join me for a week of volunteer service working with my old US Forest Service trail crew. I don’t doubt for a second that the real snowflake will be revealed.

  32. Peter permalink
    April 5, 2017

    @Web

    I live in New Mexico where we have a tricultural racist system with a good infusion of illegal aliens to bring our groups together at times. I’ve fished the Gila wilderness for the last 40 years and fought some fires around there but people who know of the Gila may not know it’s in Catron county. Catron county is where the Counties Movement began after some do-gooder environmentalists managed to stop logging in the Gila forest to save a spotted owl. This destroyed the local economy that was already weak and drove locals further into poverty or forced them to move. No real attempt was made to assist the locals beyond the paternalistic directive for them to become part of the tourism industry.

    This was hailed as a huge environmental victory in the media when it happened and the locals were forgotten until some of the more extreme and vocal people started the movement. If you force frontier people from their jobs or threaten their livelihood and then ignore them they will react and even follow extremists. Facing real or imagined attacks from the government, scorn from the leisure class and media local citizens will follow people who attack those forces because they are alone.

    I’d like to see and fish the River of No Return country but I can’t even walk anymore so I’ll just sit and bum fish while watching out for the burly woodsman snowflake of the north.

    Note; the overgrown forest that was saved for the spotted owl was nearly completely burnt to the ground from the drought and extreme fires of the last decade. I drove through one twenty mile strip of this total destruction six years after the fire and there was no recovery.

  33. Webstir permalink
    April 6, 2017

    @Peter:
    Dude, don’t bullshit me with the old “the environmentalists took away our jerbs” crap. My emphasis in law school was natural resource and environmental law. I have an M.S. in Bioregional Planning and Community Design. My thesis concerned the impact that far left environmental groups (i.e.. Alliance for the Wild Rockies et al.) using NEPA, ESA, etc. have upon different timber harvest selection outcomes.

    You want to be informed on the subject? Start following this blog: http://forestpolicypub.com

    There, you will find a consensus among a wide variety of professionals in the land management field that will tell you that your formulation falls woefully short of reality. Markets closed down your timber town, plain and simple. It’s not the fault of all those “dirty hippie environmentalists (although it so neatly fits the right wing narrative). The environmental challenges almost never stop a timber sale. The USFS just pitches it in a different form. They slow the agency down, sure. But ultimately, the product produced is better for the democratic process influnecing the outcome.

    You bit off more than you can chew here Peter. Time to retreat.

  34. StewartM permalink
    April 6, 2017

    Welll, the Rs killed the filibuster (at least for all judicial nominees). That part of blowing up the system is done. Now we have to get the Rs to blow it up for all legislation, to prevent the Ds from having the “Oh but we don’t have 60 votes excuse for inaction).

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