Torching the republic (Mitch’s nuclear option)

April 8, 2017 3 Comments

Burning democracy down requires more than one person. In our constitutional republic it actually requires more than one branch of government. Donald Trump only controls the executive branch, which in theory leaves the other two branches to keep him in check.

The thing is, we didn’t lose control of the White House first. Senate Majority Leader Mitch McConnell started the fire in the legislative branch, before Trump was even elected. When (I’m optimistically saying “when” and not if”) America recovers from this, people need to remember who started this fire. It wasn’t President Trump, it was Mitch. He is torching democracy to seize control of the Supreme Court, and for now at least, he’s getting away with it.

The nuclear option

In case you haven’t heard, the Senate confirmed Neil Gorsuch to the Supreme Court yesterday. From NBC’s coverage:

The Senate confirmed judge Neil Gorsuch to the Supreme Court Friday in a mostly party-line 54-45 vote that reflected weeks of bruising political fighting which deepened congressional divides and changed the nature of high court appointments in the future.

Gorsuch, President Donald Trump’s first major court nominee, will fill the seat that has been vacant since Justice Antonin Scalia passed away in February of 2016. He will be officially sworn in on Monday morning.

This only happened because Mitch changed Senate rules to allow it to happen.

Many conservative pundits are busy today, criticizing Democrats for claiming 60 votes were necessary to confirm Gorsuch. Technically those claims are incorrect, but only because Senate rules are complicated. In 2006, Justice Alito was confirmed by a vote of only 58 to 42.

However, when people are talking about the Senate’s “60-vote” requirement, what they’re really talking about is the cloture rule. When a filibuster occurs, a call for “cloture” (to end debate and force an up or down vote) can be made, but can only pass with at least three-fifths of the Senate voting for cloture. With the Senate at 100 seats, that means 60 votes. Without 60 votes, the filibuster continues.

A call for cloture on Justice Alito’s nomination passed by a vote of 72 to 25, well above the 60-vote threshold. That allowed the vote to confirm Alito to move forward, where he could be confirmed with fewer than 60 votes. This means 14 more Senators voted for cloture than voted for confirmation of Alito.

These traditions of the Senate functioned as checks on its immense power. While passing a law requires both houses of Congress, the Senate alone can approve treaties, ambassadors, Cabinet secretaries and other federal officials, and federal judges. That means the Senate is the only check on the President on these important matters. The Constitution only specifies an approval threshold in the Treaty Clause (requiring a supermajority of two-thirds of the Senate to approve), but it seems appropriate to maintain a higher-than-simple-majority threshold for these other appointments as well.

The 60-vote cloture rule has provided such a check for decades. It’s not required by the Constitution, and the Senate could change its rules and remove the cloture requirement by simple 51-vote majority to remove the cloture requirement. However, it was honored for decades by both parties as control of the Senate swapped back and forth.

The cloture rule is such a significant historical check on Senate power, that the concept of removing it by simple majority vote is known as the “nuclear option.”

Gorsuch was confirmed yesterday, despite an ongoing filibuster and the lack of a successful cloture vote. His confirmation was only possible because Mitch invoked the nuclear option and destroyed the cloture rule, perhaps permanently.

Mitch wanted this. Mitch planned this. Unlike President Trump, Mitch is a strategist, and a terrifyingly good one. He’s even trying to set it up so he can blame the Democrats for this.

But this is all him.

The long, subtle, quiet coup

Sometime during the last several years, Mitch must have realized a few things:

  • Most Senate rules can be changed easily by simple majority vote;
  • Torching tradition is low risk if your opponent has more respect for tradition than you do;
  • Forcing your opponent to torch tradition will give you cover to torch it further;
  • Republicans were on making headway on their goal of controlling a majority of state legislatures, which control state voting laws, which control the Senate;
  • The Supreme Court controls the constitutionality of voting laws, which means that Republicans can’t control the Senate unless they control the Supreme Court;
  • The Senate confirms Supreme Court Justices, meaning Republicans can’t control the Supreme Court unless they control the Senate.

Putting all of the above together, Mitch took the lead on a massive, already well underway, go-for-broke gamble by Republicans to take permanent control of both the Senate and the Supreme Court.

If Mitch succeeded, a virtuous cycle would emerge: Whenever Republicans took control of a state legislature, they could adopt gerrymandered redistricting and intentionally discriminatory voter suppression laws to maintain control of that state. While gerrymandering doesn’t directly benefit statewide elections (such as U.S. Senate elections), gerrymandered elections mean GOP-drafted voter suppression laws that do benefit Senators. Control of the Senate means control over the Supreme Court, including the power to block any nominee who might strike down voter suppression laws.

I’m not sure I can point out exactly when Mitch committed to this, but it was no later than June 2013, when President Obama nominated three new judges to the D.C. Circuit Court of Appeals. Under Mitch’s command as Senate Minority Leader, GOP Senators filibustered Obama’s nominees, not out of any objection to their qualifications, but because they didn’t want a Democrat to fill those seats at all.

Mitch described Obama’s nominations as an effort to “pack the DC Circuit“, which was clearly and demonstrably false. “Court packing” refers to the practice of creating judicial seats to fill, “packing” the courts with as many judges as you want. Obama’s D.C. Circuit appointments were to fill existing vacant seats.

In November 2013, with Mitch showing no sign that he’d ever allow Obama’s judicial nominees to be confirmed, Senate Democrats finally cleared the obstruction by invoking the “nuclear option” on all Presidential nominees other than Supreme Court Justices. Mitch gleefully told Harry Reid on the Senate floor, “You’ll regret this, and you may regret this a lot sooner than you think.”

Fast forward a bit, to February 2016. The GOP had won control of the Senate, Mitch was now Senate Majority Leader and blocking more judicial nominations than ever, and Justice Antonin Scalia died on a Texas ranch resort for the rich and powerful. A month later, President Obama exercised his executive authority by nominating Merrick Garland to replace him.

What happened next, Mitch claims is one of his “proudest moments” ever: He told the President of the United States, to his face, “You will not fill this Supreme Court vacancy.” This has nothing to do with the filibuster power, or with who President Obama appointed. Mitch was clearly, unambiguously abusing his power as Senate Majority Leader, to block any nomination by President Obama to the Supreme Court.

Most people know the rest of the story from here, but they don’t realize how much happened leading up to the Garland nomination, or realize how it fits into Mitch’s overall goal of destroying democracy. To recap:

  • Mitch blocked votes on three Presidential judicial appointments, solely because the President nominating them was a Democrat.
  • Mitch’s main argument to support his ongoing filibuster was a blatant lie.
  • Mitch’s abuse of the filibuster backed Democrats into a corner, forcing them to use the nuclear option on non-SCOTUS nominations to get a vote on Obama’s D.C. Circuit nominees.
  • Mitch refused to even hold hearings to fill Scalia’s seat, solely because the President nominating a replacement was a Democrat.
  • Once a Republican was in the White House, Mitch moved quickly to confirm a Republican appointment.
  • When Democrats tried to filibuster in protest that a Supreme Court seat had effectively been stolen, Mitch invoked the nuclear option and blamed the Democrats.

This will have a lasting, negative impact on our democracy. One example of that will be my permanent refusal to address Mitch by his honorary title of “Senator McConnell”. One does not get to abdicate their duties as a Senator and retain the title. Respect is earned, and I do not owe Mitch any respect. Neither does any American, except those complicit in this nearly completed coup.