IN NAME ONLY

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 Once it is established that the rules can be changed whenever they are inconvenient, strategy is obsolete.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 The practical consequences of that approach are no different than if the rule were simply repealed.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?

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25 Responses to “IN NAME ONLY”

  1. mago Says:

    This isn't even one dimensional chess; it's not even checkers.

    It's just, it's just . . . arrrrgh!

  2. Deggjr Says:

    I agree, make McConnell change the rules. Same outcome, less bullying.

  3. Heywood J. Says:

    It's good old fashioned Calvinball — whoever has the ball makes the rules up as they go along.

  4. Skepticalist Says:

    "My right honorable friend" will never be heard over here because it's reserved for adults.

  5. jcdenton Says:

    Filibustering Gorsuch has a symbolic value. There is a good reason why the Republicans tried to repeal the ACA two dozen or more times under Obama and tried to investigate Benghazi what… seven or eight times? It give your constituents something to seethe about while they're waiting to go the polls. If Democrats want to start fighting dirty, this is pretty much the only option.

  6. RosiesDad Says:

    In a system where one party does what serves their interests regardless of norms, the only option the other party has is to operate the same way. If Charlie Brown had kicked Lucy in the head the second time she pulled the ball away, she might have stopped fucking with him, right?

    Republicans will do what they do while they hold the majority. If the Democrats ever win the majority back (now there's a big IF for you), they need to be willing to do the same. Wait, maybe that's part of the key to winning the majority back.

  7. charluckles Says:

    I see the futility of Democratic options but at this point would have to argue that not being bullied into compliance would be a win. Or at the very least a much, much better option than just rolling over.

  8. charluckles Says:

    I see the futility of Democratic options but at this point would have to argue that not being bullied into compliance would be a win. Or at the very least a much, much better option than just rolling over.

  9. Mark Says:

    …Republicans' refusal to allow a vote on, well, essentially anybody appointed by Obama. Uh, wrong. Eight Obama appointees were confirmed in the first two days of Obama's first term, including Hillary Clinton as Secretary of State.

  10. geoff Says:

    @Mark, I'm pretty sure we're talking about judicial appointments here.

    I don't think the Dems have any choice but to make Mitch pull the damn trigger. At least PRETEND to stand up, guys.

  11. democommie Says:

    I'm pretty much for the dems showing some spine, I don't see any downside. If they don't they get called gutless and watch the RefucKKKliKKKlansmen dance and cheer and if they do they get to watch the RefucKKKliKKKlansmen dance and cheer after, in both cases, they steamroller the dems and seat Gorsuch. Being polite to bullies only makes them happier–personal experience. I never got a worse beating for standing up to them.

  12. Joe Jonas Says:

    Don't worry, the next time Democrats have power in the Senate, they'll bring the filibuster back to look high-minded. Then it will be repealed by Republicans again, and so on and so on until the end of time.

  13. beejeez Says:

    Love ya, G & T, but the Democrats aren't getting outmaneuvered on judicial appointments. They're getting outvoted. They know how to play, but the other team is bigger, stronger, and their fans show up for every game. Have a little respect for responsible adults trying to cope with that.

  14. GunstarGreen Says:

    When the Supreme Court seat was first open, Obama made an appointment, and Republicans in the House and Senate proceeded to stall for upwards of six months.

    We live in a system in which that was allowed to happen, and now Republicans are complaining about Democrats delaying Trump's choice for that same seat by a matter of weeks. And at least half of the electorate is okay with all of this.

    At the same time, many Republican voters hate Obamacare, love/rely upon the ACA and are now wringing their hands over the idea that the people they elected might just actually repeal the Obamacare that they said they would repeal, which is and always has been the ACA that these voters rely on, and they know it, and they still keep voting Republican.

    The system is broken and cannot be fixed. It is not worth saving. Let it collapse under its own weight, and start over.

  15. Steve Holt! Says:

    The GOP stopped believing in democracy forty years ago.

  16. Monkey Business Says:

    Anyone with half a brain knew this would happen. The GOP basically came out and said "We're not voting for anyone appointed by Obama." and dared him to make a case out of it. They got their best case scenario – a GOP White House, Senate, and House. If Trump does nothing else for four years, this is a win for them.

    So, the Democrats will filibuster Gorsuch. McConnell will torch the filibuster for Supreme Court nominees. Every justice from here on out while be subject to the same political issues as the rest of our appointed positions.

    The new rule in American politics is if you don't control the White House and both houses of Congress, you can't do anything. If you're a Democrat, make it 60 votes in the Senate too.

  17. mothra Says:

    I'm with Rosie's Dad. Time for Charlie to start kicking Lucy in the head.

  18. Sharkbabe Says:

    They walk away with our lunch money, snickering, episode 8,357.

    Starting to get bored with this series.

  19. This Guy Again Says:

    I was watching some talking head news program the other day where one of the commentators was saying that it might be better for the Democrats to wait to filibuster the next nominee, and the strategist who was on the program said "Waiting for something worse to come along is never an effective political strategy."

  20. HoosierPoli Says:

    I couldn't be happier to see the filibuster dead and buried. The idea that a superminority can obstruct the majority of popular representatives is fundamentally antidemocratic and while I enjoy being able to block the Republican project of dismantling modern society, realistically Republican sabotage and Republican obstruction have the same end consequence.

  21. NickT Says:

    Given the amount of noise that the Traitor Turtle has recently emitted about how easily he can nuke the filibuster, I'd guess he's not that eager to do it and might not even have the votes he claims. The Democrats should stand strong and force McConnell to put up or shut up. It's going to happen sooner or later and the Democrats might as well put McConnell on the record as being the thug who destroyed the Senate to put Darth Plagiarist on the SCOTUS.

  22. Jado Says:

    While practically futile, MAKING the GOP kill the filibuster is tantamount to admitting that there is no middle ground. And it's about time. Because the Democrats have been jumping to the right for decades in order to accommodate the GOP's new definition of the "middle".

    So now, if they actually do it, there is no wiggle room. The GOP owns this whole mess. The Democrats will not "help" the GOP with their master plan for robbing their voters to increase the income of rich people. Stop pretending that the GOP is an honorable opposition. Pay attention to what they have been saying for years, and believe them. Democrats are the enemy? So be it.

  23. Prairie Bear Says:

    What HoosierPoli said, and I would just add that the Senate must already be the most undemocratic legislative body of any actual democracy on Earth because of the unequal representation, even without the filibuster. So yeah, good riddance to it.

  24. democommie Says:

    I guess that they axed the filibuster today. Thank you, GOP, for continuing to provide the proof that you are unparalelled hypocrites (as if we needed more proof, OY!).

  25. Jeany Says:

    When the history is written, let us tell how Mitch McConnell took the norms, the legendary comity of the Senate by the hand, walked it down to the well of the Senate and invited his fellow Republicans to participate in a gang rape. None of them turned him down.

    The violation can never be undone.

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