In the earliest days of the Republic the Founders had to work out how certain things would be done. After a messy few years under the Articles of Confederation they scrapped that and wrote this Constitution thing. And yet even the Constitution left certain things open to interpretation.
From the very first few batches of nominees put forward by George Washington for the advice and consent of the Senate there was a disagreement. On August 5, 1789 the Senate refused to grant advice and consent to the nomination of Benjamin Fishbourn of Georgia to the role of naval officer in Savannah in the federal customs service.
Fishbourn’s fault, as best as can be elucidated, is that he had personally offended James Gunn who was Senator from the state of Georgia. The day after the failed nomination, on August 6, 1789, George Washington wrote a letter of protest complaining about the Seante’s refusal to grant advice and consent to Fishbourn’s nomination.
Washington complained that if the Senate should deem a nomination unworthy that they should “communicate that circumstance to me, and thereby avail yourselves of the information which led me to make” the nomination. In essence, he asked for the ability to make his case in support of a doomed nomination.
Following this back and forth the Senate considered a motion to give their advice and consent in the presence of the president. Washington rejected the notion, favoring his own right to nominate anyone he might choose without giving his reasons and favoring the ability of the Senate to reject a nominee for any reason the Senate might choose.
And, to conclude this tale… how was Fishbourn denied the advice and consent of the Senate? Senator Gunn and Senator William Few, also of Georgia, objected. The Senate, deferring to the wishes of Senators Gunn and Few, did not hold a vote on Fishbourn’s nomination. Thus the tradition of Senatorial courtesy was born.
As that linked CNN article makes clear the only way the Democrats have to block or delay a SCOTUS appointment is by persuading a few Republicans to join them and getting a majority in the Senate or by filibustering. If neither of these options work (the filibuster obstacle can be removed by simple majority vote) then what do they have left? Or am I missing something?
There might be a few Republican senators who wouldn’t join the Democrats in rejecting the nominee but would be unwilling to end filibusters for SC nominees.
Unfortunately I think the best political option for the Democrats is to filibuster any nominee they find ideologically unacceptable (likely any Trump nominee). The Republicans just showed that there’s no (or very little) political cost to going all out in refusing to cooperate with SCOTUS nominations, even with a popular president. If this results in the end of the filibuster, so be it.
If you use the filibuster sparingly, then there’s a chance you could keep it for rare occasions. If you use it routinely, then you will lose it for everything. What’s to be gained in doing that?
For one thing, because the Senate is very, very close, and an attempt to eliminate the filibuster might fail. For another, because losing the filibuster (or requiring a talking filibuster), in the long run, helps the Democrats, IMO. Lastly, to maintain liberal/progressive excitement and momentum. At the congressional and local level, opposing Obama on pretty much anything was a winning political strategy for the Republicans. The Democrats should learn from that success, and push back very, very hard against Trump, on almost anything that’s not an outright progressive priority (for example if Trump proposed an actual progressive fix/improvement to the ACA, then Democrats should cooperate, IMO).
So all for political reasons. And just my opinion, of course.
I’d hate to have to draw a line on how long is too long to delay; but I think there’s a legitimate difference between stalling a few months until it’s known whether there’ll be a party shift after eight years, versus saying you’d rather not have a fully staffed SC for the duration of an administration.
There probably is, but politically I don’t think it matters. I doubt the Democrats would succeed in holding the line for 4 years straight if they tried my preferred strategy, but I think it’s the best choice in terms of political strategy. Give in and vote for cloture on a nominee, and they’ve just sacrificed a lot of liberal/progressive excitement and momentum, IMO. Better to force a filibuster elimination, which I think helps the Democrats in the long run anyway.
The GOP has 52-48 (and the VP for tie-breaking). It’s somewhat close, but every estimate I have read suggests that the votes for killing the filibuster are there if needed.
By the way – the Democrats shouldn’t trumpet their opposition ahead of time. They shouldn’t say “we intend to go all out against any and every Trump nominee for the SCOTUS”. Rather, they should talk “reasonable” – i.e. “we intend to fully evaluate any potential SCOTUS nominee, and vote how we think is best”… and then it just so happens that the first nominee is found so unacceptable to require a filibuster. And the second. And the third. And so on. But each for ‘legitimate’ ideological reasons (which shouldn’t be that hard with enough digging).
I disagree. The Republicans have a structural advantage in the Senate, in that there are more smaller red states and bigger blue ones. To the extent that the parties are evenly matched over the long term, the Republicans are more likely to control the Senate more often, as compared to other branches of government. So the Democrats are better off with enhanced minority power in that body, over the long term.
I think opposing Obama worked in the sense that the Republicans were then not identified with Obama’s policies and could campaign against them. For example, had the Republicans accepted Obama’s offers of a few small crumbs of Republican priorities in exchange for supporting the ACA, the Republicans would have been on record as supporting it and would not have been able to rail against it for the next 7 years. Since they were unified in opposition, they could.
But beyond that, I don’t see it. If the Democrats in the Senate vote against Republican bills but don’t filibuster them, then they can still campaign and inveigh against them to their hearts’ content. I don’t see that filibustering specifically adds all that much (if this leads to the loss of the filibuster, and they don’t actually block anything).
It’s not just about “structure” – it’s about ideology and philosophy, IMO. The Democrats want to make big sweeping changes that will be awfully hard to repeal from a political standpoint (i.e. universal health care, minimum wage increases, etc.). Republican priorities – reducing government in general, reducing taxes (especially on the rich), etc., I think are generally easier to reverse than Democratic priorities, once passed into law.
Bills are different (though it will depend on the content) than SCOTUS, IMO – I wouldn’t advocate that the Democrats oppose with a filibuster every single Trump-supported bill, necessarily. I think they should filibuster any that qualifies (by Democratic standards, at least) as an attack on women’s rights, or immigrants’ rights, or voting rights, or the like, while not necessarily filibustering other policies. In some cases, like infrastructure, they might be wise to support them.