Gorsuch Wins, the Filibuster Loses

“This isn’t really about the nominee, anyway,” Senate Majority Leader Mitch McConnell said on Thursday morning, in his prelude to the detonation of the Senate’s “nuclear option” to push the confirmation of Judge Neil Gorsuch, for a seat on the Supreme Court, forward for a vote. McConnell was talking about the Democrats’ motives in staging what he called a “partisan filibuster” of Gorsuch, which the nuclear option, by changing Senate rules, would end. The vote to change the rules passed around lunchtime, by a vote of 52–48—all the Republicans were on one side and all the Democrats on the other—setting up a confirmation vote for Gorsuch on Friday. He will likely get it. Then the Senate, if it likes, can go back to its ineffectual arguing about who is to blame for what. Going nuclear was a milestone; given what the Senate has already become, however, it is hard to see it as a tragedy.

McConnell’s explanation of what, in his view, the Democratic opposition to Gorsuch was really about began with Donald Trump but then quickly slid into a catalogue of slights and grim accusations only a half-step removed from conspiracy theories. The “larger story,” McConnell said, was “the left’s never-ending drive to politicize the courts,” with the fight over Gorsuch as an “escalation in the left’s never-ending judicial war, the most audacious yet, and it cannot, and will not, stand.” McConnell’s litany of offenses went back decades; ten minutes into the speech, he was still railing about Bill Clinton’s nominees, with a particular animus toward Ruth Bader Ginsburg, who, he said, was confirmed despite her “notably extreme views.” “What universe are we talking about here?” McConnell said. “Few, few outside of New York and San Francisco believe that Ruth Bader Ginsburg is in the mainstream and Neil Gorsuch is not.” We are talking about a universe in which McConnell refused to let the Senate even consider—even to hold hearings—on the nomination of Merrick Garland, an eminently qualified moderate whom President Barack Obama named when there was almost a year left in his term. Several senators expressed concern that the end of the sixty-vote rule made it less likely that non-extreme judges would be confirmed in the future. Yet that future seems to have already arrived, not because of the nuclear option but because of the multi-year ground war the Republicans have waged. The tactics have included McConnell’s maneuvering to stop any measure of Obama’s that he could.

What is a filibuster, these days, after all? On Tuesday night, Senator Jeff Merkley, of Oregon, held the Senate floor for fifteen hours, and much of what he said, about Gorsuch and his anti-labor jurisprudence, for example, was worth saying. But Merkley wasn’t filibustering, in the sense of blocking anything from moving forward. He was just talking. The purpose seems to have been to trigger some atavistic American memory of filibusters, brave stands in which a senator declares that the discussion is not yet done, that our democracy is still deliberating—a last-ditch attempt to persuade. (Or perhaps that is an American dream, rather than a memory, since filibusters were, historically, most clinically used to block civil-rights legislation, and thus to exclude large numbers of people from the national conversation.)

What was being nuclear-bombed this week was, instead, the rule that sixty votes are necessary for cloture—to end debate—on a Supreme Court nomination; for Gorsuch, the Republicans had only fifty-five. The Democrats launched the nuclear option a few years ago, to get lower judicial appointees through. But the sixty-vote rule is still in place for significant legislation. Defenders of the rule portray it as a way of furthering the founders’ vision of the Senate as a brake on a runaway republic, where opinion might sway the government to act too quickly or absolutely. And this week there has been talk about how doing away with the rule, particularly for legislation, would mean that senators would no longer make sure that a bill was balanced and bipartisan enough to attract votes on both sides of the aisle. But not much in the way of bipartisan accomplishments has happened for a long time, and often enough the cloture requirement is an excuse, not a prod. As a result, the sixty-vote requirement led to gridlock, not to governance. Instead of pushing Senators to compromise, it protected them from the consequences of their rhetoric and their extremism. If nothing ever happened, after all, you could say anything.

And yet, many Democrats would say, isn’t this the moment for gridlock? The President is a dangerous man. It’s time to be the Party of No. One sees the attraction there, and the reasons for envy: after years of anti-Obama obstruction, the Republicans have control of Congress and the White House, which is why Gorsuch, rather than Garland, is set to be the next Supreme Court Justice. But one might step back and ask whether the Republican Party is really in a position that anyone ought to want to emulate. Its “no” state was the political landscape in which Donald Trump emerged. It also encouraged acts of make-believe. Endless votes in the House, for example, to repeal Obamacare—promptly and predictably vetoed by Obama—gave extremists in the G.O.P.’s ranks a fantastical idea of what “yes” might look like. Now while members of factions like the Freedom Caucus will—to the detriment of the most vulnerable Americans—get some of what they want, that mind-set also contributed to the Republicans’ failure (again, so far) to kill Obamacare. If the Democrats want to save the Republic from Trumpism, they need to be for something and speak out for the lives of Americans. Senators on both sides talked about the grandeur of traditions already long hollowed out—John McCain, before voting for the nuclear option, told the Washington Post that anyone who thought that the move would be healthy for the Senate was “a stupid idiot”—a decline for which the modern filibuster bears some real blame. Without the cover it provided, the Senate may actually have to act. So might the Democrats.

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