The Day After
The Senate has “gone nuclear.” Like in the 80’s TV movie, America now must face the fallout.
As I have been chronicling in previous posts, the pillars of American democracy are crumbling, its underpinnings bending and creaking. If we ever get an “infrastructure” bill this year or decade, perhaps the first restoration projects should be our American democratic institutions. Counterproductively, on April 7, 2017 Senate Majority Leader Mitch McConnell dropped a bomb on yet another of those supporting columns: The two-thirds/supermajority vote requirement to override a filibuster by the minority party of a president’s Supreme Court nominee. This move was the latest volley in an assault that is changing the face and shape of the democratic process before our eyes.
FiveThirtyEight published two excellent pieces on the Gorsuch Filibuster (or as they call it, the “Gorbuster”). Neither party comes out shining in these analyses, but they do a good job of describing the chaotic scene. The first was a chat evaluating the Democrats’ strategy of forcing McConnell’s hand to invoke the “nuclear option…”
…and the second examines whether it was such a good idea for McConnell to do so, and if the Republicans’ might briefly enjoy an ultimately pyrrhic victory.
The Cold War Era inspired not only a scary made-for-TV movie in 1983, but also the Sting ballad “I Hope The Russians Love Their Children Too,” based on an adage that we’re safe from nuclear war because “the Russians love their children more than they hate us.” That sentiment rings true today with the Scalia Saga. Back in the 80’s, the Senate loved their grand institution more than they hated each other. Now, sadly, the case is reversed and we have indeed seen “nuclear” consequences.
The Republicans’ “win” in the short term—getting Trump nominee Gorsuch seated following their obstruction of Obama’s nominee Merrick Garland—is a big one, but it’s heavily tainted (for whatever that matters). Gorsuch’s seat maintains the current ideological balance of the court, replacing a conservative justice with a conservative. To Barack Obama’s credit, in the midst of a highly partisan climate he put forth a moderate/centrist nominee, who in my opinion should have been swiftly approved, and allow the nation to get on with its life (more on that later). Instead, McConnell and the majority-holding Republicans stonewalled Obama, who still had a year left in office. So Gorsuch’s seat was acquired as a result of
- the Republicans shattering a Constitutional requirement (sitting President fills opening, Senate advises and consents);
- then, bending and twisting a long-standing Senate rule (supermajority required for approval).
Four wrongs don’t make a right
Republicans were quick to justify those two “wrongs” with two related points:
- In 2013 Harry Reid, then the Senate Majority Leader as a Democrat, invoked the nuclear option to allow President Obama’s lower-court justice appointments to go through. Kind of the “but he started it!” argument from second grade.
- During Gorsuch’s hearings, Republican Senator Lindsey Graham went off on a rant all about the “shoe being on the other foot,” and (paraphrasing) “don’t tell me if it was George W. Bush instead of Barack Obama who had a seat come open in the eighth year of his presidency, you Democrats would have done the same thing!”
These are simply two more wrongs. Even four wrongs don’t make a right.
When was the last time the Senate simply did something because it was the right thing to do?
What “the right thing” would have looked like
Instead, here’s an idea: Maintain our rules, our institutions, our mutual respect for the constitution. Where this leads, it seems, is to both sides agreeing to centrist, down-the-middle, balls-and-strikes judges. Viewing how toxic partisanship has become, and how U.S. citizens increasing despise it, I don’t understand how this is a bad thing. But alas in reality that’s crazy wishful thinking. How about this instead:
- Harry Reid holds his fire on the 2013 nuclear option. Barack Obama may have needed to put forth more moderate judges in some circuits.
- When Justice Scalia passes away, Barack Obama attempts to replace him with a left-leaning judge. The Republican senate majority denies the nomination, citing “you’re not replacing our beloved Scalia with an activist liberal.” Instead, Obama offers up the moderate Garland, and the Republicans begrudgingly vote him in.
To wit:
Article Two of the United States Constitution requires the President of the United States to nominate Supreme Court Justices and, with Senate confirmation, requires Justices to be appointed.
In this perfect world, in this vision of a more perfect union, why would the Democrats or Republicans accept this outcome? Because that’s what the Founders’ beautiful concept of checks and balances demands that they do. I wrote a post during the final days of the 2016 presidential primaries that laid out this perfectly-conceived, impeccable balance between our three branches of government:
- The president is selected by a parliamentary-style process, both in the delegate-driven party primaries, and ultimately through the electoral college.
- Congress is selected by a process that is closer to one-man/one-vote. While the apportionment of Senate seats favors smaller states (I mean, really favors them), congressional seats themselves are nonetheless awarded based on a simple majority.
- But the Supreme Court? The Supreme Court is selected by a process called fate. These are lifelong appointments, and the makeup of the court is shaped by the ebb and flow of the presidency, and what seat on the bench opens up. If a conservative justice passes during the term of a Democrat president, that’s life. That’s fate.
First, each part needs to strive to get their party’s presidential nominee elected, then perhaps another seat will open up. I’ll add a third segment to my “what if” scenario above: About a year after Merrick Garland is sworn in by Barack Obama, Donald Trump takes the oath of office after defeating Hillary Clinton. Then, sometime during his term, Stephen Breyer retires. The traditional advise-and-consent process plays out in a Republican-led Senate, and a right-leaning moderate replaces the left-leaning Breyer.
Simple. America, not great “again,” just still really great.
Back to reality: The aftermath of so many “wrongs”
Instead, we will likely see an even more politicized Supreme Court, and the court makeup will continue to have an outsized influence on presidential politics (see: ultra-conservatives holding their noses and voting for the godless, misogynist Trump based on him holding the ace-in-the-hole of the subverted Obama pick). Conservatism also stands a good chance of gaining even more influence. With a mere simple majority required going forward, conservatives’ built-in advantage in Senate seat apportionment—two seats per state, no matter the size—will be even stronger.
With congressional districting, Senate seat apportionment, and the electoral college system all favoring smaller and more rural states, we may see a conservative government presiding over a majority that happens to be liberal-leaning—a majority that happens to be largely crowded into coastal states and larger cities.
And the nuclearized simple-majority-wins will cut both ways when it comes to senatorial consent. Any time there is a Supreme Court seat opening in the future when the presidency and the Senate majority are held by different parties, the nomination will undoubtedly be held up. The Senate majority will obstruct nominations until their party wins the presidency. McConnell has defaced our uniquely American checked-and-balanced governing heritage, like dynamiting Washington and Jefferson off Mount Rushmore.
The day after tomorrow
The only hope for restoring balance and bipartisanship? Moderate candidates find their voice, we vote for them, their influence moves the congressional chambers back toward the middle, toward cooperation and compromise, toward each other—as the Founders intended. The Supreme Court self-managing their political tendencies amongst themselves would help, too.
You’re laughing (or crying). So am I … I remain hopeful and vigilant, but so am I.
Meanwhile, as we wait for the seemingly impossible to happen, bipartisanship will get buried deeper in the nuclear ash.
