Democrats planning a likely futile gesture to send a message to Trump.
Desperate to placate their increasingly rabid far left-wing base, ethically-flexible Senate Democrats are planning to launch a filibuster against a Supreme Court nominee for the first time in a half-century and only the second time in American history.
Their insistence on this course of action could very well lead to the abolition of the filibuster for Supreme Court nominations.
Senate Minority Leader Chuck Schumer (D) said a few days ago that his Senate colleagues will not allow President Trump’s nominee to replace the late Antonin Scalia to be voted on because he’s not a left-winger who views the Constitution as an endlessly malleable social-justice plaything.
“After careful deliberation I have concluded that I cannot support Judge Neil Gorsuch’s nomination to the Supreme Court,” Schumer said on the Senate floor after Gorsuch’s marathon confirmation hearing wrapped up.
“Judge Gorsuch was unable to sufficiently convince me that he’d be an independent check on a president who has shown almost no restraint from executive overreach,” Schumer said with a straight face after compiling a near-perfect record of supporting President Obama’s overreaches over the last eight years.
“Second, he was unable to convince me that he would be a mainstream justice who could rule free from the biases of politics and ideology,” added the senior senator from New York.
It was just four years ago that Schumer voted to exercise the so-called nuclear option by changing the rules of the Senate by a simple majority vote instead of the usual supermajority. The rule approved at that time banned the use of the filibuster against all judicial nominees below the Supreme Court.
But that was then and this is now. Schumer is now opposed to changing the rules by a simple majority vote.
“The answer isn’t to change the rules, it’s to change the nominee,” he said last week.
As part of their strategy, Democrats are now trying to convince Americans that Gorsuch cannot be confirmed unless he garners 60 votes in the Senate, as opposed to a simple majority.
Gorsuch “should have a hearing and he should meet the voting standard that Supreme Court nominees are held to of 60 votes, a standard that was met by Elena Kagan as well as Sonia Sotomayor, President Obama’s choices,” Sen. Dick Durbin (D-Ill.) said last month.
This idea that a Supreme Court nominee must receive 60 votes in the Senate to overcome a filibuster is both passé and pure fantasy.
As Dan McLaughlin explains, six Supreme Court nominees, including two members of the current high court – Justices Sam Alito and Clarence Thomas – have been confirmed with fewer than 60 votes.
And if the procedural rule on filibustering judicial nominees can be changed by a simple majority, the precedent set by Democrats four years ago, then Republicans can disallow filibusters against Supreme Court nominees by a simple majority as well.
“We’re not going to be treated by a double standard,” Senate Majority Whip John Cornyn (R-Texas) said Monday. “We’ll give our Democratic colleagues a chance to see if they provide the 60 votes; if they do, it’s a moot point. And if they don’t, as I said before, we will confirm him one way or the other.”
The filibuster has suffered near-death experiences in the last few years, most recently under then-Senate Majority Leader Harry Reid (D-Nev.) in 2013. First he launched an assault on filibustering in July of that year when he sought to move President Obama’s stalled agenda forward.
Reid vowed to execute the above-mentioned parliamentary maneuver called the nuclear option – sometimes called the “constitutional option” – in order to allow filibustered executive branch nominations to go forward and be approved with a simple majority of senators. If the Senate is considering a change in its rules, the vote threshold rises to 67 – at least it did in theory.
The nuclear option procedural playbook calls for the Senate's presiding officer to rule that instead of a supermajority only a simple majority of senators is required to cut off debate. If a majority of the senators votes to uphold the presiding officer, his or her interpretation of the rules becomes a precedent. By this means the 67-vote requirement to weaken or even abolish the filibuster can be superseded.
In the end Reid steamrollered the then-minority Republicans and got them to agree to stop holding up the nominations of the truly vile now-DNC chairman Tom Perez as labor secretary, Gina McCarthy to head the Environmental Protection Agency, Richard Cordray as the first permanent director of the Consumer Financial Protection Bureau, and two nominees to the National Labor Relations Board.
In exchange for not nuking the filibuster, all hapless Republicans got out of the deal was a short-lived maintenance of the procedural status quo. Reid gloated after his victory. “This must be a new normal,” he declared. “Qualified executive nominees must not be blocked on procedural supermajority votes."
Four months later with Reid still running the show, the nuclear option was triggered. The Senate ignored the 67-vote requirement for a rule change, voting 52 to 48 to ban the filibuster to block executive nominees, except in the case of nominations to the Supreme Court. It could be said that the 67-vote requirement was effectively nullified by senators in a raw show of political force.
If Democrats block Gorsuch, President Trump has indicated he’s fine with the nuclear option to clear away any procedural hurdles.
Current Senate Majority Leader Mitch McConnell (R-Ky.) has been sending mixed signals about the nuclear option. Politico reported this week that McConnell “has heavily telegraphed that he will invoke the so-called nuclear option to unilaterally change Senate rules with a simple majority vote.”
But McConnell is a creature of Washington who talks out of both sides of his mouth and who seldom misses an opportunity to sabotage members of his own party. Apparently, he never got the memo about how the Senate now does business in the post-Harry Reid era. For some strange reason he continues to labor under the delusion that 67 senators still have to approve a change to the filibuster rule.
“It takes 67 votes to change the rules in the Senate,” McConnell said a week after President Trump was sworn in. “We saw one rather conspicuous exception to that a few years ago but no we don’t have any current plans on the rules.”
It needs to be pointed out that the filibuster is entirely a creation of the Senate. The Constitution is silent on the matter. Arguments can be made for and against it but the plain fact is it isn’t a sacrosanct regulation that can never be repealed.
For those not versed in parliamentary arcana, under Senate rules any member is entitled to filibuster, that is, talk a bill to death or prolong debate indefinitely to prevent a matter from being voted on.
According to Senate historians:
Using the filibuster to delay or block legislative action has a long history. The term filibuster -- from a Dutch word meaning "pirate" -- became popular in the 1850s, when it was applied to efforts to hold the Senate floor in order to prevent a vote on a bill.
In the early days of the republic when there weren’t as many states, hence fewer senators expectorating chewing tobacco into government-provided spittoons, members of the much smaller Senate were allowed to hold the floor as long as they wanted. A move to curb filibusters in 1841 failed. But filibusters were restricted in the Progressive Era when President Woodrow Wilson pressured the chamber to adopt what became known as Rule 22. As of 1917, if two-thirds of senators voted to invoke “cloture,” debate on a specific item could be shut down. Otherwise, unlimited debate could continue. Cloture was first successfully used to end debate in 1919 on the Treaty of Versailles that formally ended the First World War.
The filibuster, which was made famous in the 1939 hit movie about an honest senator fighting corruption, Mr. Smith Goes to Washington, acquired an ignominious taint when Southern Democrats used it to block civil rights legislation, such as anti-lynching measures. Cloture shut down a 60-day filibuster against the Civil Rights Act of 1964.
Cloture was also used to prevent the elevation of a sitting justice on the Supreme Court. When President Johnson nominated his close friend and political collaborator Associate Justice Abe Fortas to become Chief Justice in 1968, the nomination was successfully filibustered. When the Senate failed to invoke cloture on Oct. 1, 1968, Johnson withdrew the nomination. The ethics problems that haunted Fortas were a factor in his resignation from the Supreme Court in May 1969.
The proportion of the 100 Senate members needed to invoke cloture was reduced from two-thirds to three-fifths in 1975.
And today, with Democrats baiting Republicans into banning Supreme Court nominations from being filibustered, the cloture rule may be changed yet again.
The pressure on Democrats is intense.
After Republicans were humiliated on Friday by having to scrap a planned House vote on Obamacare reform legislation because they lacked the votes on their own side, left-wing activists are emboldened.
“Seeing Trump give up the moment going gets tough stiffened Democrats’ spines to fight hard for their principles on Gorsuch,” said Ben Wikler, Washington director for MoveOn.org. “It’s clear that if Democrats are united around popular principles, and fight back hard, they can win.”
Democrats don’t accept Donald Trump as a legitimate president – some routinely liken him to Hitler – and have vowed to fight him on just about everything. They are still furious at Republicans for not allowing a vote on Obama’s high court nominee Merrick Garland last year. They claim the open seat on the Supreme Court belonged to them and was “stolen” by stalling Republicans.
But they’re the ones who ushered in the era of scorched-earth judicial nominations with their televised character assassination of Supreme Court nominee Clarence Thomas in 1991. And they blocked George W. Bush’s judicial nominees with impunity and relish including the eminently qualified Miguel Estrada to the U.S. Court of Appeals for the District of Columbia Circuit in 2003.
In recent days, senior Democrats have reportedly become “increasingly confident” they have the votes to block Gorsuch.
Former Judiciary Committee chairman Pat Leahy (D-Vt.) may have publicly distanced himself from Schumer’s stratagem, saying he is “not inclined to filibuster” Gorsuch but plenty of Democrats are down with the struggle. Jeff Merkley (Ore.), Bill Nelson (Fla.), Bill Casey (Penn.), Debbie Stabenow (Mich.), and Dick Durbin (Ill.) all say they’ll support the filibuster.
A cloture vote on the Gorsuch nomination could come as soon as next week, and with it a further weakening of the filibuster.