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Why Democrats should filibuster the Gorsuch nomination



There’s one huuuge reason: Because Repubs wouldn’t even allow Merrick Garland to have hearings. That was so unfair, so extremist, so partisan, it poisoned the well for Trump’s SCOTUS nominee/s—or should have, in a “what’s good for the goose is good for the gander” reckoning.

Democrats seemed slow to get the message, at least in my reading of the situation. They couldn’t stop Gorsuch from having his day before the Senate Judiciary Committee—a courtesy denied Garland. And they won’t be able to outvote the committee’s Republicans, who then will send the vote to the floor for an up-or-down vote of the entire Senate.

But what Democrats can do is filibuster the nomination. The “filibuster,” you’ll recall, is a procedural tactic, applicable only in the U.S. Senate (but not the House of Representatives), by which a Senator, or group of Senators, can delay or prevent a vote from taking place. The only way to break a filibuster is if a super-majority of Senators—sixty, or three-fifths–votes to end it, in a move known as “cloture.”

The filibuster obviously has been, and can again be, used by either party, to obstruct a vote on a nominee it does not care for. This is why some Senators, both Republican and Democrat, have favored eliminating it entirely, since it goes against a central concept of our democracy: the majority rules. In recent years, especially since the Republicans took over the Senate, an alternative concept has arisen: the “nuclear option.” This is where the Senate’s presiding officer—the president pro tempore, in this case, Orrin Hatch—can rule that a simple majority is decisive in judicial nominations, thus ending the sixty-vote requirement, effectively killing the filibuster.

I love the term “nuclear option” because of its metaphoric symbolism: a thermonuclear bomb. Nobody wants an H-bomb to drop on their heads; it is literally the worst thing in the world. Republicans have implicitly warned that if Senate Democrats try to filibuster the Gorsuch nomination, they will invoke the nuclear option. This would result in two outcomes: it would guarantee a vote on Gorsuch (which would probably be favorable) but it also would end the filibuster in the future, when a Democratic President and Senate may make judicial nominations Republicans don’t like.

Democrats have seemed rattled by this possibility. Their thinking, until very recently, seems to have been: “If we have to accept Gorsuch in order to keep the filibuster, let’s do it.” I strongly disagree. For one thing, if both sides lose the filibuster, that would be a fair, even outcome. Neither side could complain it got the worse of the deal. For another, there’s no guarantee that, if Senate Democrats filibuster Gorsuch, McConnell will actually go ahead with the nuclear option. He said recently that the nuclear option “is up to our Democratic friends,” meaning that he’s not going to say in advance that he will or will not invoke it, until Democrats indicate whether or not they will use the filibuster. This thus becomes a game of chicken: both sides are in their souped-up cars, revving the engines; the cliff is 100 yards away. What will happen?

We can’t know, but there’s a third reason for Democrats to filibuster: the symbolism. What has annoyed and pissed off the Democratic base for years has been the appearance of Democratic Congressional leadership’s cravenness and spinelessness when it comes to fighting back against Republicans. The revolt of the left (for lack of a better phrase) is due to this sense among the rank-and-file: Republicans play hard and dirty, Democrats play fair and nice, and Republicans win. This revolt, which we have seen assume the magnificent form of The Resistance, is what my senior Senator here in California, Dianne Feinstein, has been feeling since the inauguration. A moderate centrist, Dianne always has gone along the path of least resistance, voting most of the time for Republican nominees; but in the last few weeks, she has heard from her constituents, loud and clear, that “moderation in the pursuit of justice is no virtue.” (Readers: Do you know where that quote comes from?) Dianne is in the process of discovering her inner warrior woman, which she’ll have to do if she wants to run again and be re-elected next year.

A filibuster would be the surest sign yet that Democrats are listening to their base. It would satisfy us that they’re no longer willing to roll over for their Republican colleagues; moreover, such an encouraging sign would come at a time of increasing restiveness among Congressional Republicans, as their President’s mental instabilities are increasingly evident. In fact, should nervous Republicans in the Senate wish to send Trump a message that they’re close to reaching their breaking point with him, a good way to do it would be for McConnell not to invoke the nuclear option. He could argue that it would be bad for Republicans in the future, a viable dodge; and while it would enrage Trump, what could he (Trump) do? He’s alienated nearly every power center in Washington; he needs his Congressional Republicans in order to institute his policies. McConnell, in other words, is holding the high cards.

So, to Democrats in the Senate, I say: Filibuster! Roll the damn dice, do the right thing, and let the chips fall where they may. After the weakness you have shown year after year, you owe this to us, who have remained loyal to the Party.

  1. Bill Dyer says:

    Also, Trump should not be able to put forward Supreme Court nominees during his last year in office–which is this year…

  2. Haha, made me laugh!

  3. Bob Henry says:

    Bill . . . do you know “something” we don’t???

    Pray tell us what your Ouija board reveals . . .

    (“Enquiring minds want to know!”)

  4. Bob Henry says:

    On the subject of playing “nice” or playing “hard and dirty,” game theory teaches us that tit-for-tat is an effective strategy.



    “In business [subsection]

    “Individuals who employ the tit-for-tat strategy are generally considered to be tough but fair — a disposition that is often respected in the business/organization world. Those who always cooperate with a competitor are often viewed as weak, while those who consistently compete are perceived as unfair. In any case, the implications of the tit-for-tat strategy have been of relevance to conflict research, resolution and many aspects of applied social science.”

  5. Bob, at this point it is speculation, but everyday there seems more and more indication the investigation coming up with things damaging to Agent Orange:

  6. There is even a wine industry angle: Devin Nunes was (or is) an investor Alpha Omega Winery:

  7. Bill Dyer, I did not know that. But it just goes to show that even a bad person can own a good winery!

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