Get rid of the filibuster, an undemocratic vestige of an earlier time when the Senate stood against the forces of reaction. Spare me the drool about the Senate as a place where cooler heads prevail. They might have except when civil rights came up. James Vardaman understood. So did Theodore Bilbo. As did Strom Thurmond. So did beloved Richard Russell, after whom the damn office building is named. Google them. Please note what they said at the time, some of which is even in the Congressional Record. It’s 2017, and a Senate with Mike Lee, Lindsey Graham, and Ted Cruz is considered the reasonable chamber.
Scott Lemieux had it right eleven years ago when George W. Bush nominated Samuel Alito:
The problem, this argument goes, is that if we filibuster then so will they, with nobody better off in the long run. In a context in which the norms of judicial nomination were stable, I think this would be quite compelling. But, of course, that’s not the case. As their rule changes like doing away with the blue slip rules indicates, there’s no reason to believe that Senate Republicans will respect past arrangements, and nor is their any reason to believe that they will defer to the Supreme Court nominees of a Democratic President no matter what happens to Alito. (We don’t know what would have happened had Clinton ignored Hatch and appointed someone like Babbit, but it almost certainly would have been a very hard-fought struggle at best.) Of course, the most likely outcome of filibustering Alito would be getting rid of the filibuster rule altogether–which, of course, as Yglesias says is the best reason to filibuster of all. To paraphrase Joey LaMotta, if we win, we win. If we lose–we still win:
Let me make a few other points:
First, don’t think the GOP wouldn’t have filibustered Sotomayor and Kagan if (a) the Dems didn’t have fifty-nine senators, thus complicating Mitch McConnell’s attempt to corral the requisite votes; (b) Barack Obama’s approval ratings still weren’t impressive.
In addition, no one or thing, tradition or otherwise, has forced McConnell to “go nuclear.” He can acknowledge the president’s nominee doesn’t have the votes to get confirmation from the full Senate, inform the president of the Senate’s decision, and either wait for a second nominee or leave the ninth seat vacant.
You’ll hear in the next few days, like a fly buzzing around a picnic, about a man named “Robert Bork.” When the GOP mentions Bork, it’s without explanation or context; everyone, even Nina Tottenberg, understands what “Bork” means. Here is explanation and context. Ronald Reagan’s pick to replace the retiring Lewis Powell (whom you’ll hear described as a swing vote and a moderate; only the former was true, the rest is for another day) was rejected by the Senate Judiciary Committee (9-5). A panicked White House wanted to withdraw the nomination. Bork insisted on a floor vote. He got one: 42-58. Thus began a lucrative career for Bork as Trojan horse of conservative resentment and bearded scold who wrote awful books about Gomorrah and the dangers of rock music. Ted Kennedy, condemned by the right for his speech excoriating Bork’s adherence to a Constitution scornful of minority rights, got a spine because Democrats had won control of the Senate eight months earlier.
Eliminating the filibuster was a long time coming, and it may yet prove that this time the wily McConnell is too clever by half. He may not have the votes to eliminate it — for now.