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Monday, April 03, 2017

The Dems have the Votes to Filibuster, But is it a Good Idea?

Hi everyone, and thanks for the warm welcome. This week, it’s the Gorsuch nomination that’s on everyone’s mind, and that includes mine.

As of this afternoon, the Dems have the 41 votes necessary to filibuster the Gorsuch nomination—and I'm not sure how I feel about it.  So I'm launching my guest stint this month with the question: is a filibuster of the Gorsuch nomination a good thing, or bad?

Here’s my view on the merits of the nomination, for what it’s worth:

If you’re a conservative, Neil Gorsuch is fantastic.  Enough said.

Even if you’re not a conservative, Gorsuch is a fine choice—for what he is. His credentials are impeccable, and by all accounts he is an amiable guy.  Maybe even amiable enough to not take personal jabs at his colleagues when he disagrees with them, which would be a good thing for the Court (and the rule of law too).

The question, then, is whether those of us who are not conservatives should have a problem with “for what he is.”  Gorsuch is a staunch conservative, chosen from a list comprised with input from the Federalist Society and Heritage Foundation to appeal to the far right.  He’s not a moderate, and he’s not pretending to be.  He’s vying for “Scalia’s seat” and if you view it that way, he’s a great guy to fill it.  

And that’s the hitch. Republican claims that this is their seat to fill with an ultra-conservative are complicated by the lack of a mandate from the popular vote, Russian meddling in the election, and most of all, the fact that for nearly a year, there was a moderate conservative nominee on the table—Merrick Garland—who didn’t even get a hearing.  Senate Republicans could have refused to confirm him, but to refuse to even consider him was in my mind inexcusable, and arguably unconstitutional as well.

Further complicating the narrative are Republican claims now that “playing politics with judicial nominees is profoundly damaging to the Senate’s reputation and stature. It politicizes our judicial nomination process and threatens the independence of our courts, which are supposed to be above partisan politics.” Really.  A curious argument, to say the least.

And that brings me back to the filibuster. The Dems have the votes, and it’s not like they don’t have their reasons. But is it a good idea?

The Senate filibuster is famously anti-democratic; it allows the minority party to obstruct the majority party’s agenda just because it can. But because of that fact, it also forces the majority party to work with the minority part rather than running roughshod over it.

In this case, filibustering Gorsuch would mean (assuming it held) that Republicans would have to go back to the drawing board, and find a nominee who more Democrats could get behind. In short, Republicans would have to work with Democrats to get the nominee confirmed, just as Democrats would have to work with Republicans if the shoe were on the other foot.  Imagine that, two parties working together to get the job done.  It’s like Bob the Builder, but in Congress (don’t click the link unless you’re a parent and are already singing the song in your head).

But if Republicans respond to the Dem's filibuster by changing the rules for Supreme Court nominations—the so-called “nuclear option”—all that comes to an end.  Forget needing to work together; if you have the majority, you win, period.  Welcome to a world where hyper-partisan politics just got worse.

For the Supreme Court confirmation process, a Democrat filibuster risks setting up the Democrats for even more partisan picks to be shoved down their throats, should another opening on the Supreme Court arise in the next several years. On the other hand, Republicans may be shooting themselves in the foot in the long run, just as the Democrats did when they eliminated the filibuster for lower level executive appointments in 2013 in response to Republicans exercising their right to “just say no.”

That’s why I’m not quite sure what to think—about the Gorsuch nomination, about the impending filibuster, and about the “nuclear option” that is likely to follow.  Thoughts?

 

 

Posted by Corinna Lain on April 3, 2017 at 04:00 PM | Permalink

Comments

I think Democrats would be foolish to force the Republicans' hand to eliminate the filibuster at this point. The end result in any case is that Gorsuch will be approved and a conservative will fill Scalia's seat. I think that there will be no political blowback on Republicans for removing the filibuster at this point, because for most of the public it is already a foregone conclusion that it will happen. On the other hand, if the Democrats accept that they cannot effectively block Gorsuch now, they can save the filibuster and look more principled and/or bipartisan. Then, if Ginsburg/Breyer/Kennedy leave the bench for any reason, it would be harder for Republicans to eliminate the filibuster at that point without looking like they are ramming a candidate through. The reality is that Gorsuch's appointment will not change the balance of the court, but the next appointment will. Unfortunately, too many outside interests are squeezing Democrats to filibuster, so they don't have much choice.

Posted by: TJM | Apr 3, 2017 4:40:24 PM

I would love to hear the argument of how refusing to consider an appointee is unconstitutional.

Posted by: YesterdayIKilledAMammoth | Apr 3, 2017 5:32:07 PM

It might help everyone to think a little more clearly about this if they can recall what they thought or wrote about the Dems nuking of the filibuster for every other nomination.

I can think of no principled difference between the 2 cases. If one were gung ho or at least blase about that situation, he can be relieved that one's consternation now is not based on any deep constitutional or democratic concerns, just rank partisanship.

Posted by: biff | Apr 3, 2017 5:40:11 PM

Here's the argument:

The Constitution provides that the President "shall nominate, and by with the Advice and Consent of the Senate" shall appoint the justices. Statements from the founding era strongly suggest that this language was understood to mean that when the president nominates, the senate has a responsibility to act on that nomination. In NC, James Iredell explained the appointments clause by saying, “The President proposes . . . a man for such an office. The Senate has to consider upon it. If they think him improper, the President must nominate another, whose appointment again ultimately depends on the Senate.” Alexander Hamilton explained the process in the Federalist Papers by writing, “There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose—they can only ratify or reject the choice he may have made.” John Adams wrote in 1789 that the Constitution provided that “The whole senate must now deliberate on every appointment....” I haven't seen any statements from the founding era even remotely suggesting that the Senate can do an end run around the process by just refusing to consider the nominee entirely.

Again, my claim is that the senate's refusal to even consider Garland was "arguably unconstitutional." I think that's more than fair given the prior paragraph.

Posted by: Corinna Lain | Apr 3, 2017 5:56:33 PM

I thought both the Democrats' decision to eliminate the filibuster for nearly all appointments and the Republicans' decision to withhold consent for Garland's appointment were both completely constitutional and blatantly partisan. Of course, this partisan behavior is exactly what should have been expected when the 17th amendment was passed. In fact, I'm surprised it has taken us so long to get to this point.

I'm not sure how you characterize Garland as a moderate conservative. If he were, there is no way Obama would have nominated him.

Posted by: HokieEngineer | Apr 3, 2017 6:01:11 PM

These are great comments, thanks to both for taking time to write.

Biff, I hear you--which is why I noted the Dems doing this & shooting themselves in the foot in 2013.

And TJM, very thoughtful. Both of these comments have me still chewing on where I come out on this. Let's say we were in the Rawlsian original position, and we didn't know if we'd be a dem or republican, but we knew that we wanted the parties to work together to govern. How would you answer the question about the wisdom of the filibuster, and the nuclear option?

Posted by: Corinna Lain | Apr 3, 2017 6:03:34 PM

And to HokieEngineer, you're right--Garland was a moderate, but it's a stretch to say moderate conservative. Nominated by Clinton, confirmed by a republican-controlled senate 76-23.

Posted by: Corinna Lain | Apr 3, 2017 6:10:00 PM

Good question. I think Democrats may be making a strategic mistake by filibustering now. If they do, it would go along with other recent mistakes.

I have always appreciated the thought of the anti-democratic characteristics of the filibuster, but then I realized it was never in the founding documents.

In 2013, then Majority Leader Harry Reid eliminated it for nearly all nominations in 2013 and predicted last year before the election that Democrats would regain the majority and eliminate it for Supreme Court nominees. In October 2016, when polls had Mrs. Clinton winning the election in a landslide, the Huffington Post headline ran "[Sen.] Tim Kaine: Democrats Will Nuke Filibuster For Supreme Court Nominees If GOP Won’t Cooperate."

What a difference a day makes. I'm sure these politicians choked on their words on November 9, 2016.

I am sure there are genuine hurt feelings by some senators over Judge Garland's treatment. Those with hurt feelings would do well to remember that the other side may have memories of recent Democratic threats to kill the filibuster.

I think the Republicans will quote Harry Reid, Tim Kaine and others, then change the rules, and confirm Judge Gorsuch. They will think nothing of it--what goes around comes around.

There is plenty of hypocrisy to go around. I beg to differ with your characterization of Judge Gorsuch as anything other than mainstream--after all, he was confirmed unanimously in 2006, including by Senators Harry Reid, Chuck Schumer and Dick Durbin, and we know they'd never vote for an out of the mainstream nominee, right?

Posted by: Jareau | Apr 3, 2017 6:29:00 PM

I'm all in favor of the filibuster because it will force McConnell to change the rules and end the right of either party to filibuster once and for all. I keep checking my copy of the Constitution every time I read a Washington journalist proclaiming that the filibuster is an essential part of American democracy. Let's not forget that for most of the twentieth century, the sole purpose of the filibuster was to prevent laws ending racial desegregation from being enacted.

Posted by: PaulB | Apr 3, 2017 7:05:43 PM

Corinna--In my opinion, you can argue that it is unconstitutional for the Senate to fail to act, but I would argue you're just plain wrong. The Constitution is very clear, when it wants to be, about the consequences of a failure to act (e.g. Article 1, Section 7). It is also very clear (Article 2, Section 5) that the Senate gets to determine how it conducts its business. That includes withholding its consent to an appointment by not voting at all.

Obama could have chosen someone the Senate would have consented to. He chose to nominate someone that he hoped the Senate would confirm; the Senate chose not to. He was free to withdraw the nomination; he chose not to.

Posted by: HokieEngineer | Apr 3, 2017 8:00:52 PM

Corinna,

I may come off as rude in this reply. It is not my intention, but I am also not put off by the prospect. Your post is an example of why legal scholars make terrible historians. The good news for you is that John Yoo is still worse.

Beginning with the John Adams 1789 letter, it becomes quite clear that Adams is against the senate (rather than a special council) exercising confirmation of appointments. He makes several points, but he reinforces two. First point, the senate does not have time. It already is overloaded with treaties and other business. There simply isn't enough time.

The second point, it too closely associates the senate with the executive. The senate will feel a need, first, to take up the business and, second, to consent to the appointment, simply because it is the executive. Adams also makes the point that, should the executive appoint someone inimical to the senate, the senate will be despised by the people for disqualifying the appointment, even though the appointment is the executive's fault. From the letter: "Senators and representatives, and their constituents, in short, the aristocratical and democratical divisions of society ought to be united on all occasions to oppose the executive or the monarchical branch, when it attempts to overleap its limits. But how can this union be effected, when the aristocratical branch has pledged its reputation to the executive, by consenting to an appointment?

The piece of evidence falls thunderously.

Concerning Iredell, a non-partisan reading clearly indicates that he does not mean that the senate *has to* consider any and every appointment. Rather, it means that any presidential appointee *has to have been considered* by the senate. In other words, no presidential appointee can be appointed without going through the senate. It does not mean that every appointment to the senate has to proceed.

Regarding Hamilton, nowhere does he say the senate has to defeat the appointment with an up-or-down vote.

The "arguably" part of "arguably unconstitutional" is very poor, so far.

A final word to others here: The problem with backing Dem. obstructionism is that you agree that it is, in fact, a valid strategy and all the previous mewling was not actually based on principle but rather on partisanship.

In other words, you didn't hate obstructionism because it is wrong on principle. You hate obstructionism because it was your party being obstructed.

Posted by: YesterdayIKilledAMammoth | Apr 3, 2017 8:06:03 PM

Does it actually matter? Assume the norm is that (a) Every Senator votes party on the nominee; (b) Every Senator will vote party line on cloture and (c); Every Senator will vote party line on whether to invoke the nuclear option. In that world, it doesn't matter if an opposing party tries to filibuster (block cloture on) the nominee. The nominee will always be confirmed if the President's party has a majority in the Senate and always be blocked if otherwise.

Posted by: Orin Kerr | Apr 3, 2017 9:32:36 PM

Corinna,

Thank you for your follow up. I am not against the filibuster on principle, and I think it would ultimately behoove both parties to keep it in place as an indication of each side's willingness to work together. But it also requires that both sides give it its proper respect (i.e., the majority doesn't "nuke" it, so long as the minority is judicious in invoking it).

To paraphrase some of the other comments, I don't think that either side can lay out a principled argument for eliminating it or removing it, either for the Supreme Court or for other appointments; it is purely partisan. I suppose if I were in a senator's shoes, I would be approaching it from a game theory perspective, in which case the most rational decision would be remove it and take advantage before the other side can do it in a way that harms me.

Posted by: TJM | Apr 3, 2017 9:39:16 PM

The only way that the filibuster for Supreme Court nominees would not have ended this term is if the presidency and the Senate were held by different parties.

If McConnell were to have allowed Garland the same courtesy that the Democrats showed Bork, Garland would be on the Court today. (If McConnell and his caucus had afforded Democratic judicial nominees to lower courts as much courtesy, I doubt Reid would have changed the rules for them either.) And if Ginsberg, Breyer or Kennedy were to leave the Court this term, McConnell could have pointed to allowing Garland's confirmation to proceed as proof of his commitment to senatorial norms, and I think most Democratic Senators would have accepted an up-or-down vote as fair. But we're here now. All maximalist positions, all the time, no exceptions.

Democratic Senators need to show their voters that they are willing to fight. Their voters need to see that judicial vacancies are apt to be filled with judges broadly hostile to their agenda, every minute Republicans hold the Senate majority and the White House.

Posted by: John Thompson | Apr 3, 2017 9:50:37 PM

"If McConnell and his caucus had afforded Democratic judicial nominees to lower courts as much courtesy, I doubt Reid would have changed the rules for them either."

Chuck Schumer tells us that if a nominee cannot secure 60 votes, the answer is to change the nominee, not the rules. So I don't exactly buy the argument that the obstruction by Republicans merited the rule change. My point here is not to be snarky, but to simply point out that neither party has any claim to the moral high ground in this scenario. I think you give Reid too much credit if you actually believe this. Again, as others have pointed out, there were multiple Democratic senators that openly stated before the election that they would willingly nuke the filibuster altogether. But then, I guess that was different because they were sure Clinton would win at that point.

Posted by: TJM | Apr 3, 2017 10:15:10 PM

I don't care about whether Democrats have "the moral high ground," for as much as that item is worth in a country that elected Donald Trump its President. I also don't care about whether a filibuster for Supreme Court nominees can be found in the Senate's rules of order, if it's moot in practice. In the first sentence, I acknowledged that it would have died this term under either President, except in a case where the Senate Majority Leader was of the opposing party. And I guess our new norm for that case is for the Senate Majority Leader to pretend that the President's nominees don't exist.

My point was that preserving a privilege for a future minority will (and should) depend on how that privilege is treated in your most recent majority. If Orrin Hatch does not allow individual Senators to blue-slip judicial nominees, then neither should Pat Leahy. If Mitch McConnell does not allow Supreme Court nominees a hearing when he is Majority Leader, neither should Chuck Schumer.

Posted by: John Thompson | Apr 3, 2017 11:21:44 PM

John Thompson, except that Democrats called the practice unprincipled and illegitimate.

If that is true, an unprincipled and illegitimate practice does not suddenly become legitimate and principled because the other side has the chance to use it.

Besides, if the deadlock is going to end, someone, somewhere is going to have to be a grown up and stick to whatever they say their principles are. I, for one, would love to see the Dems follow what they've been preaching. I think it would be a fantastic foil to what the Republicans did. And, it would add further weight to the Republican strategy having been illegitimate.

But look at this board. Jesus wept.

Posted by: YesterdayIKilledAMammoth | Apr 4, 2017 1:44:42 AM

Nice "Bob the Builder" reference. =-)

Posted by: Rick Garnett | Apr 4, 2017 7:42:38 AM

hi everyone, thanks for engaging. A few thoughts fwiw.

On "arguably unconstitutional"--yes, Adams was against the idea of confirmation by the Senate, you've shown that nicely--but nothing you said or quoted there suggested in any way that Adams thought the senate could just ignore its role altogether. So I have no idea why you think that piece of evidence "falls thunderously" but it didn't for me. Indeed, you work hard--I mean, hard--to get around Iredell's words (“The President proposes . . . a man for such an office. The Senate has to consider upon it.") by saying has to consider doesn't mean has to actually proceed, just means can consider by doing nothing, and you work equally hard to say that Hamilton's words ("they can only ratify or reject the choice [the president] made") don't really mean what they say, that the senate has to vote up or down. All the while you are silent as to anything that says or suggests that the founders thought it ok for the senate to do an end run around the process they had just created by simply refusing to participate. But here's the thing--have we not just argued about the constitutionality of the senate refusing to even consider Garland? That was my claim, a very modest one, and um, I think you just helped me make it.

John Thompson, I think you're right in observing that the value of the filibuster depends on how it is used, judiciously or as political obstruction bar none. I think in this case it may well be the latter for the Dems, but as TJM notes, their base has rarely been more energized for resistance at every turn. And past moves--on both sides--cast a long shadow on what is happening now.

I do find myself still thinking about what the right move is, if I were in the rawlsian original position & just wanted govt to function as well as it could in a world where politics are sharply divided.


Posted by: Corinna Lain | Apr 4, 2017 9:00:08 AM

@Yesterday:

This may be your first experience with politicians saying things solely for public consumption. It happens all the time, and means very little outside of whom or how many they can get to repeat their version of events.

Nobody cares whether the Republican strategy is illegitimate, and the Democrats would be silly to base a strategy on the public suddenly caring about the legitimacy of what Republicans did to the Garland nomination. It would be smarter for them to base their strategy on the revealed preferences of the electorate (i.e., not to care about parliamentary procedure) and the Republican majority (i.e., to eliminate counter-majoritarian quirks in the Senate's rules of order the minute they become inconvenient).

Personally, I hate the filibuster and all the other quirks of the Senate that give too much power to individual senators. In the abstract, I believe that you should get to govern if you win an election, and be held accountable for what occurs without being able to deflect blame to a minority. Empirically, I believe that the filibuster is far more costly for a liberal agenda than it ever will be for a conservative one. The filibuster for presidential appointees of any type is dead, because no Senate majority with a President of its own party will want it in the way. On the other hand, the filibuster for legislation keeps the Senate majority from having to vote on whatever nonsense bubbles up out of the House, and allows the Senate minority to seem more useful to its constituents; therefore, it probably will remain in force as equally convenient to both sides. Under that reality, both parties should probably continue to push a maximalist version of their agenda and cooperate as little as possible with the other, letting the voters sort it out for themselves.

Posted by: John Thompson | Apr 4, 2017 10:02:59 AM

This idea of the Democrats "saving" the filibuster for a different appointment seems to me to rest on one of two very dubious assumptions. One: in the future, there will be some nominee that a majority of senators would vote for on an up or down vote, but would not be willing to kill the filibuster for. I don't understand how that would be the case. If a majority of senators want that future justice on the court, they will kill the filibuster if it is used at that point, just like they will kill it now if it is used. Whether the filibuster is "held in reserve" till then will have no impact on whether it is used. Two: The theory that Mitch McConnell will respect the use of the filibuster in the future for a different justice because the Dems chose not to use it this time. I haven't seen any evidence that this would be the case, given his discussions about the filibuster in the first place.

The point is that if the Dems use the filibuster on a Supreme Court nominee while they are in the minority, the GOP will kill the use of the filibuster, whether it is used now or in the future. Given that is the case, why not use it now, so the Dems can show the base that they are at least willing to put up a fight, and maintain base support? For the Dems in vulnerable, conservative areas, they will of course oppose the filibuster, and also vote for Gorsuch, as they should for their own political needs. Doesn't seem like a question of "good" or "bad", just political necessity.

Posted by: anonandoff | Apr 4, 2017 2:33:48 PM

Corinna,

First, you haven't shown that the senate not allowing a nomination to proceed is "ignoring its role". Again, nothing you've quoted means that the senate has to consider any and all appointments made. Indeed, I think Adams would be quite sympathetic to the senate not moving forward on a nomination that would go nowhere (as the letter shows, Adams was against the senate being forced to down vote an executive appointment since it put the onus of the failed appointment on the senate rather than the executive where, Adams said, it belonged)

This letter does nothing (and I mean nothing) for your argument.

Regarding the other two points, you've simply re-stated the (unconvincing) arguments. It is true, I did not provide positive examples of founders saying the senate did not have to consider any and all appointments. The reason for this is two-fold:

1) You provided no evidence where the founders objectively said the senate had to consider any and all appointments. Your argument rests on interpretation. I showed (convincingly) that your interpretation is far from objective or authoritative. Therefore, there is no reason to answer subjective opinion with objective fact.

2) It is better to save my positive examples so that I can thoroughly thrash this argument publicly should it ever show up prominently in print.

Posted by: YesterdayIKilledAMammoth | Apr 4, 2017 7:15:15 PM

@ John Thompson,

I stopped reading at "This may be your first experience..." because something that begins with that asinine an opening can only become more fatuous. If you'd like to re-post with a more appropriate opening, I'll be happy to read it.

Posted by: YesterdayIKilledAMammoth | Apr 4, 2017 7:20:34 PM

Corinna Lain wrote: "I do find myself still thinking about what the right move is, if I were in the rawlsian original position & just wanted govt to function as well as it could in a world where politics are sharply divided."

I am pretty sure you would want 2 things. (1) you would want a filibuster-type rule, basically a supramajoritarian voting requirement, but one that could not be removed. By requiring a super majority, it makes it more difficult for extreme policies (or appointments) to be enacted, forcing the majority party to either moderate in order to get enough votes or to win even more seats.

(2) that the posts must be filled. That is, not filling the position for an extended period of time would not be an option. This ensures that the effects of the supramajoritarian voting requirement actually have bite.

Of course, neither (1) nor (2) actually obtain. The filibuster can be eliminated, and even now, with the credible threat to eliminate it, I think it no longer functions the way it did in years past. And, the Supreme Court can certainly function with 8 members. It might be a little bit different with various administrative posts that need Senate confirmation, though, especially if elected officials have a relevant agenda they'd wish to pursue.

Posted by: Nicholas Almendares | Apr 4, 2017 7:32:45 PM

Nicholas, this makes so much sense, you're totally right! and I'm totally sad that we don't have either of those conditions.

To Yesterday..., what I know is: (1) I'm still waiting for a single shred of evidence showing that the founders thought it would be ok that the system they had just set up could be ignored at will, and your best (only?) move in response to direct quotes to the contrary is to say "oh that's not what they meant." And we're still arguing, no?

And as to your comments to John Thompson, all views are welcome here, and those expressed with civility and respect are better yet.

Posted by: Corinna Lain | Apr 4, 2017 8:02:49 PM

Anonandoff, there's a possible scenario of behind-the-scenes pressure missing from your conclusion that the filibuster is meaningless regardless of when it is used. It seems likely to me that because of the filibuster, Senate Republicans put pressure on Trump to pick someone decent, in order to try to avoid this confrontation. Think about it: We know McConnell does not want to kill the filibuster. We know Gorsuch was not originally on Trump's short list. I suspect that most of us can agree that Gorsuch is head and shoulders above everyone else on Trump's short list. Connecting the dots, I suspect the filibuster played at least some role ex ante in moderating Trump's choice. Once the filibuster is gone, that pressure is removed.

Posted by: Facepalm | Apr 4, 2017 8:50:04 PM

Corinna,

1) You have not proven that the Founders considered the senate not fully processing any and all executive appointments to be "ignoring the system". It's a bait-and-switch with regards to terminology. You have, in effect, set impossible terms of debate. Whereas the question should be, "Provide evidence that the Founders believed the senate did not have to fully process any and every executive appointment," you present the terms as "Provide evidence that the Founders believed the senate could ignore its duties."

2) Your arguments in support do not support your reading. In fact, the Adams letter weakens your argument.

Of course, if the opposing argument is so weak, you are welcome to write the argument as an article. I'll write the reply. Could be fun!

Posted by: YesterdayIKilledAMammoth | Apr 4, 2017 9:12:28 PM

Facepalm,

Gorsuch was on Trump's list of 21 candidates that was published in September, before the election. I am not sure how you are assessing whether he is "head and shoulders above everyone else on Trump's short list," but I would simply agree that he is eminently qualified, as is everyone else (or nearly everyone else) on the list. I don't get the impression that Trump thought about the filibuster at all in making his selection, because he figured it would be eliminated if necessary. I think his choice ultimately came down to picking a successor to Scalia and fulfilling his campaign promise.

Posted by: TJM | Apr 5, 2017 8:25:16 AM

A minority veto that can and will be eliminated by the majority at first use is a minority veto that almost does not exist, and that describes the filibuster today.

The downside to making the Republicans eliminate the filibuster now, as opposed to making them do it later, is that Trump may well become more impopular as time goes on and lose Republican support. Republicans so far have showed little appetite to restrain him but there is a chance that next time around a few Republicans could pretend to support Trump's choice but allow the Democrats to filibuster. I think that point has been made on this blog before.

And by the way, I see nothing unconstitutional about refusing to act on a nomination. The constitutional text makes no mention of any requirement for the Senate to act on a SC nomination and I don't think it can be fairly inferred from the structure of the text. Would the proposal that there is such an obligation also mean the Senate has to vote on all executive nominations, all bills from the House, all treaties?

I am curious as to how Professor Lain's constitutional arguments fit with her usual methodology. She seems to be advocating some form of original intent reading here, and I wonder whether that is her preferred form of interpretation of the constitution normally.

Posted by: Jr | Apr 5, 2017 10:15:14 AM

Strategically, in light of rumors that Justice Kennedy might retire and the ever-present concern about Justice Ginsburg's longevity, I wonder why the Democrats don't confirm Gorsuch. Senator Schumer should be encouraging those Democratic senators from states that went for Trump to support Gorsuch and get them over the line, allowing Democrats from solid blue states to toe the line, allowing those from swing states to appeal to show moderation, and preserve the filibuster for a later date.

Then, if Trump gets to nominate again, the stage is set for the Democrats to use the filibuster more effectively. The second nominee could be more effectively styled as extreme by using Gorusch as a foil (whether it were true or not). That argument might even work on a few of the more moderate Republicans in the Senate. But who knows.

Posted by: Daniel | Apr 5, 2017 10:25:45 PM

I do think it is absurd for the Democrats to profess some principled love for the filibuster. Surely everyone understands they are being completely unprincipled and since the Republicans could block Garland without any taking a hit in the election they are hardly going to be punished for eliminating the remainder of the filibuster on the nominations. Painting Gorsuch as an extremist and pointing out the illegitimacy of Trump's election seems like much better points.

Posted by: Jr | Apr 6, 2017 11:11:22 AM

Thanks to everyone who engaged in the conversation, you gave me lots to think about, and I enjoyed it. I obviously didn't persuade folks here that the senate not moving on Garland was "arguably unconstitutional" but we argued about it for awhile so I still feel fine about the characterization (although I have to say, I don't write about constitutional interpretation, I write about the socio-political responses to, and behind, those interpretative arguments, and on that scale I found our conversation absolutely fascinating--IF I were to write on this topic, that's what I'd be writing about).

As the week comes to a close, it feels a little weird to have watched what was clearly a turning point in the history of our Supreme Court nomination process unfold before my eyes. I suppose in the end, whether it was good or bad for the Dems to filibuster Gorsuch is something we'll just have to see play out over time.

Posted by: Corinna Lain | Apr 8, 2017 12:48:35 PM

I don't think Democrats "shot themselves in the foot" in 2013 given how the Republicans were repeatedly blocking nominees.

And, not only because of some "extraordinary circumstance" on individual nominees. They blocked nominees because they didn't like the law they enforced. They blocked them because they didn't want Democrats to fill ANY seats (DC Circuit). They blocked lower court judges when both home senators, including a Republican supported the nominee.

At some point, you have to say "enough! we have to govern here when we are in power." Republicans are less concerned about that. Yes, this means later on, you have less power to block too. But, that is a limited value too. Some argue Democrats should have not filibustered (after taking part in hearings, something Garland didn't get; few Republicans even met with him) to show how "reasonable" they are.

This is a fools game. The public as a whole, except for a limited number of Republican votes, didn't care that the Republicans were unreasonable with Garland. As to framing the next person as "extreme," people are making out Gorsuch as moderate. To degree the public pays attention, it's hard to convince people someone is really extreme especially if the person has the usual experience nominees these days have.

Again, why would we think -- without Garland, Russia investigations etc. hanging over everything -- the next time will be better? There is even a chance that an easy run of it would encourage Kennedy to retire sooner. Finally, I think a recent op-ed that cited game theory to force Republicans to change the rules being the way to go makes sense. Long term, including because their base expects them continue to fight, it was the appropriate move. If traditionalist Republicans actually cared about norms here, they could have voted with the Democrats here, at least to delay things to the end of April. But, they did not.

I think the 'arguably unconstitutional' argument is a good one. It was backed up with historical evidence and "arguable" is a limited claim. But, to me, it's a political question anyhow. So, the bottom line is that it as a whole was a horrible norm violation. This includes the compromise that was Garland, Trump being the one who nominated Gorsuch, the status of his administration, how Gorsuch handled himself etc.

Anyway, bottom line, I really question how much more conservative the nominees would now be. Various factors will be involved in nominations either way. How did a filibuster moderate the last few administrations?

Posted by: Joe | Apr 8, 2017 10:16:03 PM

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