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The Kennedy resignation: NO VOTE!



Yesterday, after hearing about Justice Kennedy’s retirement, I sent the following email to my California Senators, Dianne Feinstein and Kamala Harris.

Dear Senator,

 I expect and demand that you will join other Senate Democrats in steadfastly refusing to allow a vote on Mr. Trump’s nominee to fill Justice Kennedy’s seat, whoever that person shall be—UNLESS that person be Merrick Garland.

 Leader McConnell broke with more than two hundred years of precedent when he refused to allow a vote for Merrick Garland. That was an outrage. Now, the tables are turned. You might argue, first, that a vote ought not be allowed until the results of the November elections are in, and a new Senate seated in January, 2018. Should the Senate remain in Republican hands, you nonetheless ought to use any means necessary to block and prevent a vote.

 Thank you.

What McConnell did was so insidious and sordid, it might be argued that Democrats should not stoop to the same low level. But when you’re in a war—as we are against the forces of Trumpism—you fight fire with fire. McConnell was first to launch his weapon of mass political destruction, and it worked: he prevented a legitimate vote on Garland, and we ended up with the arch-conservative Gorsuch, with predictable (and dire) results. Therefore, Democrats are entirely justified in blocking any vote, on any candidate Trump cares to name, for as long as necessary, until Democrats retake the Senate.

It’s sad that it’s come to this, but it has. Republicans have thwarted the Constitution so utterly that extreme measures are called upon by those of us in The Resistance to restore its good name and bring order and justice back to governing this country. Democrats can block a Trump nomination because the filibuster remains the rule in the U.S. Senate (which must confirm SCOTUS nominations). Trump, of course, wants to change the Senate rules and eliminate the filibuster, because, with his Republicans currently in charge, the filibuster works against them and in favor of Democrats. But that hasn’t happened, and isn’t likely to happen, most political analysts say, because both parties—Democrats and Republicans—want the filibuster to stay. Currently, there are 51 Republicans and 49 Democrats or Democratic-aligned (this includes two independents), meaning that there’s no conceivable way Republicans could muster the 60 votes to end a filibuster. As I said in my letter to the Senators, it would be easy for Democrats to use McConnell’s own argument and claim that it’s unfair to vote on as important an issue as a Supreme Court Justice until we know the results of the November elections. What’s good for the goose is good for the gander.

(It may be that the filibuster technically can’t be used in judicial appointments, but this seems unclear to me, and besides, there are votes that lead up to hearings that can be filibustered. The point is that if Democrats wish to, they can infinitely delay a vote.)

Should the Senate remain in Republican hands, Democrats would have a harder time justifying a delay in a vote, but there must be some way it could be done until the 2020 elections. Republicans, led by Trump, would scream that Dems were being obstructionist, but Democrats would be very happy. The successful blockage of a vote, and stimulating outrage among Republicans, would be two things that would delight the Democratic rank-and-file. Indeed, simply by refusing a vote before the November elections would result in a higher Democratic turnout, by stirring the passions of Dems and reminding them, as well as independents, of what’s at stake.

I ask that you, too, contact your Senators and demand that they do whatever is allowed under the Senate’s arcane rules to block a vote. If the Supreme Court gets stacked with five reactionary Republicans, as against only four Democrats, this country is in a heap of trouble for a generation. Moreover, how much longer can Ruth Bader Ginsburg go on?

So just say NO! to a vote. This is serious stuff, friends. It’s the final assault by angry white men on an authentically diverse, liberal America that is indeed a light unto the world, not just another bastion of conservative sickness. If we have to take it to the streets, we will, with joy. Some things are worth fighting for.



  1. Bob Rossi says:

    I agree with everything you’ve said, except that, unless something has changed since the Gorsuch confirmation, the filibuster rule has been changed for Supreme Court nominations (but not for legislation) to require only 51 votes to end a filibuster. So we’d need the support of all Democrats plus 1 Republican to filibuster.

  2. You’re right, Bob. I made an adjustment since you read the original post. My point is that any nomination must be resisted, by any means necessary.

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