Excellent idea. And should have been applied to the aging Justices in the linked article.
On the one hand, our entire governement is predicated on the idea that people of good will will cooperate to work together to do what’s best for the country, even if they disagree.
On the other hand, who honestly believes that the Republicans will act in good faith and cooperate by allowing some of their choices to be fillibustered in exchange for the Dem’s cooperating and not fillibustering Gorsuch?
For that matter - who here believes that the Republicans would keep their promise to replace Ginsberg with a liberal judge, if they get the chance?
It’s true that the Republicans can force the issue but it’s also true that the Republicans can’t be trusted to act in good faith. There’s nothing to be gained from working with them and President Trump is the worst of the bunch. He doesn’t consider it a win if he’s not screwing his opponents. It’s not enough for Trump to put in a conservative judge; he has to pick a judge that will hurt his enemies.
Negotiating with the Republicans is like negotiating with Hamas. They’re not going to stop attacking and they’re not interested in peaceful coexistence. The Democrats have nothing to be gained from helping them stab us in the back.
I think the Democrats would be incredibly foolish to trust the Republicans in this way. And for other reasons (which we’ve already discussed), I think forcing the elimination of the filibuster would be a good thing in the long run.
Why would the GOP make such a promise?
It isn’t a question of good faith, because the GOP **can **force the issue. How will the Dems push the GOP into some kind of bargain?
Suppose the Dems agree not to filibuster Gorsuch, and therefore the Senate leaves the filibuster in place. Gorsuch is confirmed (God willing). Then Ginsberg steps down, and Trump nominates another conservative. The Dems decide that they want to filibuster that nominee, because he or she is conservative and will shift the balance of the Court. So the Senate overturns the filibuster and confirms the nominee.
The Democrats don’t have any leverage. I can see them suggesting that they won’t block Gorsuch in return for leaving the filibuster in place, and the GOP would probably agree. I can’t see the GOP agreeing to a liberal next time, because they don’t gain anything.
The GOP and the Democrats disagree on what is in the best interests of the country. The GOP thinks a conservative Court is in the best interests of the country, and the Dems think a liberal one is. (The GOP is correct, of course.) How do we resolve this disagreement? The President nominates someone, and if the Senate consents, that person is appointed. The majority rules. Back when the Dems had their majority, we got Kagan and Sotomayor. Now the GOP has the majority. We will get (hopefully) Gorsuch, and perhaps one or two more in the future.
Liberals sowed the wind, and are now reaping the whirlwind. If you look to the Supreme Court to push whatever you want thru because they agree with you, you had better be ready to deal with what you get when they don’t agree with you.
Regards,
Shodan
They don’t have much leverage, but at least they can get the filibuster nuked. Push hard enough, and they can get it nuked entirely, for legislation as well as the SCOTUS. Then, at least, when they regain power at some point they won’t have to write watered-down, less effective stuff like the ACA to get passed – they can push full strength UHC through, and similar, which will be awfully hard to repeal once the cycle shifts once more.
Trump has started campaigning for 2020 already. So, I guess, since a campaign is underway, we should block any Trump nominations until the people have spoken?
Nothing that I’ve written in this thread has anything to do with anyone trusting anyone. (And certainly the idea that the Republicans would promise to replace Ginsburg with a liberal is a non-starter.) I thought I’ve been clear about this, but perhaps not enough. Here’s the deal:
The idea is that all else being equal, many Republican senators like the idea of keeping the filibuster. So there’s a price that they would be willing to pay in order to keep it. If the Democrats make the price low enough, they might get enough Republican support to keep it, and the Democrats get to extract that price. But if the price is too high, then the Republicans won’t pay it, and the Democrats get nothing.
So if the price of keeping the filibuster intact is that zero Republican nominations get approved, then the price is too high and the filibuster is gone. But if most Republican nominations can get approved and only more extreme conservative nominations get filibustered (with “extreme” possibly being at least in part relative to the justice being replaced) then it’s possible that the Republicans will be willing to pay that price.
And again, the important point is that when I talk about “the Republicans” in this context it doesn’t refer to Ted Cruz etc. Every senator has their own price that they they’d be willing to pay for keeping the filibuster. But the Republicans have 52 seats in the Senate, and they can’t afford 3 defections. So if the 3 most moderate Republicans in the Senate are willing to pay the price of losing more “extreme” conservative nominations as the cost of keeping the filibuster intact, then the Democrats can extract that price and have some influence over the SC picks.
It’s a strategic choice by the Democrats. Certainly the “base” is clamoring for them to go all out. But either approach is a valid choice.
[Personally, if I was a Republican senator, I would be unlikely to pay much of a price in order to keep the filibuster, if any. Not because I don’t value the filibuster in and of itself, but because I’m convinced that the Democrats would jettison it as soon as it became convenient for them. So the Republicans keeping it around would be accepting a limit on their own power with zero to show for it. But that’s me. Apparently many Republicans would much prefer to keep it.]
Okay, I get what you’re saying. I don’t think there’s any price that the Republicans (even the 3 most moderate) might agree to that would be even close to worth it, especially when concepts like “extreme” are so fuzzy and hard to define. Even if it wasn’t so hard to define, I wouldn’t trust even those 3 moderate Republicans to keep up their end of the bargain were an “extreme” justice nominated. Further, for reasons we’ve discussed already, I think getting rid of the filibuster (in part or altogether) is a net benefit for the Democrats in the long run.
I think if the Dems can simply vote no, as a group, on this nomination, without making much fuss about it, the Republicans will have to try to explain why it is so important to break the 60 vote rule. While they are blustering and posing for that particular fight, Thrump might self-destruct. Republicans aren’t stupid. They knew when they blocked Garland that they would someday pay a big price.
I agree with this – go all out in terms of votes for cloture and confirm, but don’t announce it ahead of time or use grandiose language.
That’s a gamble for both sides.
What if Ginsburg doesn’t die before 2020? And the Democrats get the white house and a majority in the senate in 2020? Now there is nothing to prevent the senate from elevating someone like Stephen Reinhardt.
Didn’t they have 60 votes when they passed the ACA?
Barely, and only for a very short period of time. If they had only needed 50, they could have taken a lot more time, with a lot more margin, to pass it.
True, they probably had 51 votes for a public option, negotiation of drug prices and all the other stuff that you sort of need in a universal heath care marketplace.
I feel nothing but unmitigated anger over Trump’s nomination. This is a stolen seat that Obama should have filled.
Consequently, Gorsuch is an illegitimate nominee, and that illegitimacy will hang over him for the length of his duration on the Court, should he (God forbid) be confirmed. The Democrats should exercise whatever powers they can to prevent Trump from ever appointing a SCOTUS justice; if that leads to the elimination of the filibuster, then so be it. The Republicans won’t be in complete control forever.
In 2021, the Democratic majority Senate should either (a) force Gorsuch to resign, or (b) pass a court-packing scheme that adds additional seats to the Court. Those are the options IMO, and there’s no middle ground.
I’m pretty torn about this - like many Democrats I’m a process-oriented person, and I believe that sometimes you win, sometimes you lose. In general I think the President should get the nominees they want barring corruption/incompetence/extreme unsuitability. Assuming there’s nothing that comes out in his hearings about his personal or financial affairs, under normal circumstances I’d vote to confirm him based on the fact that he’s legally qualified for the job, although clearly I’d never appoint him myself.
But these aren’t normal times. Trump takes office with a minority of the vote, and while that doesn’t make him any less of a president, it’s also clear that he intends to go with a maximalist agenda. He’s got this spot to nominate to in the first place because the Republicans gambled heavily and won with an unprecedented blockade of a nominee that they didn’t oppose on the merits. And although like Narnia we’re never told what would have happened, there were three Republican senators on record as contemplating never confirming a Hillary Clinton appointment during her entire term (Burr-NC, McCain-AZ and Cruz-TX). I don’t think McConnell will ever allow a hearing on a Democratic justice again as long as he is Majority Leader. Blocking Gorsuch is certainly a hostile action but given all that, I think if you’re a Democrat you can reasonably conclude you’re at war already. So even though I wouldn’t really want to have to do it, I think I’d go for maximum obstruction and dare them to either make a concession of some sort (more moderate nominee maybe, or possibly credible commitment to deescalate in the future) or just get rid of the filibuster for appointments entirely.
What prevents Republicans from deleting but re-installing the filibuster on an as-needed basis? Abolish when GOP nominees are being blocked, but reinstate as soon as the Democrats are back in power? Of course the Democrats could then remove the filibuster too.
Some of those 60 were relatively conservative Democrats, e.g. Nelson and Lieberman, and the Democratic leadership needed to negotiate with them due to the filibuster.
How exactly, Constitutionally…?
The only reason the filibuster is still around is tradition. It has been weakened (and changed) several times throughout the years due to rule changes, but never really strengthened. (Could be argued that the change removing the need to stand for the filibuster strengthened it, but that wasn’t the intention at the time.)
If the republicans take it down to get their nominees through, and then put it back up before the dems get power, there will be nothing to prevent the dems from taking it down themselves (when back in power), what with the republicans having set the precedent.