IN NAME ONLY

Posted in Rants on April 3rd, 2017 by Ed

The present wave of write-ups about the filibuster being in peril is based on a fundamental flaw. The filibuster has been dead for years. This is just making it official. Democratic institutions don't run on rules – they run on norms, the most crucial of which is that you don't change the rules whenever you want to do something that isn't possible in a given set of circumstances. Once that norm goes out the window, then the rules no longer matter.

Perhaps the dumbest argument is that Senate Democrats should "reserve" the filibuster for some future nomination or bill. That is transparently stupid; if the GOP will "go nuclear" (a hack phrase if ever there was one) now they will be just as willing – a cynic might say "eager" – to do it in the future. And if the GOP is willing to do the parliamentary equivalent of firing an arrow, waiting until it strikes something, and then drawing a bulls-eye around it, then there is no use in getting into fifth-dimensional chess arguments about strategy. Once it is established that the rules can be changed whenever they are inconvenient, strategy is obsolete. Imagine a soccer match in which one team makes whatever it does on the field retroactively legal while the opposition tries to play by the traditionally accepted rules. Once the first team amends the rules to allow the use of tasers on defense and picking the ball up and throwing it into the goal on offense, it has ceased to be a soccer match in any meaningful sense.

The demise of the filibuster dates to the W Bush era and the appointments of Roberts and Alito. The much-heralded 2005 "Gang of Fourteen" consisting of quasi-moderate Republicans and some barely left of center Democrats was touted as a means of preserving the filibuster, but in reality it merely set the precedent that the Republicans are more than willing to change the rule whenever there is a chance that they will not get what they want. The "compromise" worked because Senate Democrats agreed to cave and vote Bush's nominees onto the Federal courts. Had that outcome not been engineered, the filibuster would have died right there. Since then the rule-in-force has been that either the GOP gets what it wants or it will change the rule. The practical consequences of that approach are no different than if the rule were simply repealed.

In the brief window in which Democrats controlled the Senate, the marvelously ineffectual Harry Reid imposed changes to the filibuster in response to Republicans' refusal to allow a vote on, well, essentially anybody appointed by Obama. This deft bit of strategy on Republicans' part ensured that the argument could be framed as, "Well Harry Reid did it, so…" What Reid did was no different in practice than what the GOP majority does now and had done in the past; the only difference is that the minority GOP called his bluff and forced him to make actual rule changes whereas Democrats in the minority are so eager to cave to Republican intransigence that McConnell and Co. never have to bear any political cost.

Is there any point to attempting to filibuster Gorsuch? Not much. Potentially the GOP could get some flack among the few people who pay attention to such trivialities for messing with the rule book to achieve partisan goals. But that talking point is likely to have currency only with people who already despise the current crop of Republicans. So, is there any point in not attempting to filibuster him? Again, not really. Filibuster him and the rule gets changed; don't filibuster him and the Republicans have successfully bullied them into compliance yet again.

You can tell the Democratic Party routinely gets out-maneuvered because so many of the decisions it is faced with boil down to, "It doesn't matter much either way." If that isn't the definition of Ineffectual, then what is?