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Senate Committee Advances Gorsuch Nomination As ‘Nuclear Option’ Becomes Inevitable

Neil Gorsuch

At the same time that the Senate Judiciary Committee voted to advance the nomination of Judge Neil Gorsuch to the Supreme Court to the Senate floor by the, it became clear that there was sufficient Democratic unity to block cloture on the nomination:

WASHINGTON — Senate Democrats on Monday appeared to secure the votes necessary to filibuster the Supreme Court nomination of Judge Neil M. Gorsuch, sending the body hurtling toward a bitter partisan confrontation later this week.

With an announcement from Senator Chris Coons, Democrat of Delaware, during the Senate Judiciary Committee’s hearing to vote on Judge Gorsuch’s nomination, Democrats found their 41st vote in support of a filibuster.

Later in the hearing, the Senate Judiciary Committee moved to approved the nomination in a party-line vote, 11 to 9, to move President Trump’s selection to the Senate floor.

The committee vote was the first step in what will be a long road for Judge Gorsuch’s confirmation this week. Under current rules, Democrats can block Judge Gorsuch unless he receives support from eight non-Republicans to break a filibuster.

If the filibuster holds, Republicans have hinted strongly that they will pursue the so-called nuclear option, changing longstanding practices to elevate Judge Gorsuch on a simple majority vote.

The nomination fight has been shadowed, in large measure, by the treatment of Judge Merrick B. Garland, whom President Barack Obama nominated in March 2016 after the death of Justice Antonin Scalia the month before. Republicans refused to even consider Judge Garland during a presidential election year.

But Democrats insist that their opposition to Judge Gorsuch stems from more than a thirst for payback. They have cited Judge Gorsuch’s record on workers’ rights and his degree of independence from Mr. Trump and conservative groups like the Federalist Society, among other concerns.

During the committee vote, senators took turns lamenting the state of the institution they serve, even as most seemed resigned to the upheaval that awaits the chamber.

Perhaps no member sounded as aggrieved as Senator Patrick J. Leahy, Democrat of Vermont and the Senate’s longest-serving member.

He first suggested that treatment of Judge Garland by Republicans last year had convinced Judge Gorsuch that “this committee is nothing more than a partisan rubber stamp,” allowing the nominee to evade straightforward questions during his hearings.

Mr. Leahy added that Senator Mitch McConnell of Kentucky, the Republican majority leader, had pledged to seat Judge Gorsuch by any means required, “even if that means forever damaging the United States Senate.”

And he wondered aloud how the Senate had become so unrecognizable to him.

“I cannot vote solely to protect an institution when the rights of hard-working Americans are at risk,” Mr. Leahy said. “Because I fear that the Senate I would be defending no longer exists.”

Almost immediately, partisan sniping dominated the committee meeting.

Senator Charles E. Grassley, Republican of Iowa and the committee’s chairman, accused Democrats of searching in vain for credible reasons to vote against Judge Gorsuch.

“This nominee that we’re voting on today is a judge’s judge,” he said. “He’s a picture of the kind of justice we should have on the Supreme Court.”

Mr. Grassley suggested that some attacks in recent weeks from Democrats, which have included criticisms of the spending push from outside groups supporting Judge Gorsuch, defied the country’s values.

“This is America,” he said, “where people can spend their money where they want to spend it.”

The rest of the committee hearing went about as you’d expect. Republicans voiced support for Judge Gorsuch unanimously while pointing to a record that has been praised by legal commentators on both sides of the political aisle and the highest possible rating from the American Bar Association. Democrats, meanwhile, concentrated mostly on their concern that Gorsuch allegedly has a record of siding with corporations over ordinary Americans and brining up the treatment of Merrick Garland by Republicans last year when they declined to bring his nomination up for hearings or a vote after the death of Associate Justice Antonin Scalia. To be fair, there were a handful of occasions where one of the Democratic Senators brought up a ruling from the Tenth Circuit where Gorsuch had been part of the majority or a dissent he had written, these cases amounted to a handful at best of the thousands of cases that have crossed his desk since being confirmed to the Tenth Circuit a decade ago and hardly seem like a fair basis upon which to judge an entire career. For the most part, though, the entire affair largely ended up being more of the same expected kabuki theater we’ve unfortunately come to expect with these kinds of hearings. While the members of the committee may like to pretend they were having serious discussions about important issues of judicial philosophy, all they were really doing was preaching to their respective bases while waiting for the process to play itself out.

Prior to today’s hearing there was some question about whether or not Democrats would be able to get the 40 votes they need to block cloture on Gorsuch’s nomination. Over the weekend, three Democrats, including Joe Manchin of West Virginia, Heidi Heitkamp of South Dakota, and  Joe Donnelly of Indiana, announced that they would support Gorsuch and vote to invoke cloture when the motion comes up later this week. Additionally, there were still a sufficient number of Democrats who had not announced their intentions to make it unclear whether there would be forty-one votes to block cloture. Senator Coons’ announcement makes it certain that there will be, which of course means that the Senate will move forward toward a process that will ultimately lead to the Republicans following the path laid by Harry Reid in 2013 and using the so-called ‘nuclear option’ to eliminate the filibuster for Supreme Court nominees. While there has been some doubt in the past about whether Senate Majority Leader Mitch McConnell would have sufficient votes to do so, it now seems certain that he does. Not only do all fifty-two Republican Senators appear to be united behind McConnell’s apparent plan but he’s also got at least three Democrats who will vote with the Republicans on cloture and on the nuclear option. As Roll Call lays out, this process begins tomorrow when McConnell formally places the nomination on the floor, beginning a set period of debate that will expire on Thursday. At that time, the Senate will debate the nomination for the rest of Tuesday, all day Wednesday, and for part of Thursday. Once the mandatory debate time has expired, At that point, McConnell will bring up the motion to invoke cloture on the nomination so that the Senate can have a floor vote on the merits on Friday. That motion will fail absent last minute changes, and it’s at that point that the “nuclear option” process will go forward. Once it is approved by a simple majority, Gorsuch’s nomination will go forward with a final floor vote Friday morning that will, of course, pass on a simple majority.  At that point, Gorsuch will be confirmed and he’ll be able to take his seat in sufficient time to take part in the final round of oral argument at the Supreme Court later this month.

As I’ve argued several times since Gorsuch’s name was first placed in nomination, and as Steven Taylor argued this morning, this seems like a strange political hill for Democrats to die on. Not only is Gorsuch a highly-qualified nominee who everyone seems to agree would be a good addition to a Court filled with highly qualified Justices, but his presence on the Court would do nothing to change the ideological balance of the Court from where it was before Justice Scalia died in February of last year. It would seem more appropriate for Democrats to save their ammunition for the fight that really matters, which could come at any time in the next four years, or eight years in the event that President Trump is re-elected, a possibility that even with current Job Approval numbers I would suggest it is far too premature to discount. Three Justices are currently at or near eighty years of age, and while it’s unlikely that either Justice Ginsburg or Justice Breyer would voluntarily step aside while Trump is President, actuarial reality tells us that both of them have more days in behind them than they do in front of them and the possibility of either one of them being forced to step aside for health reasons cannot be discounted nor, unfortunately, can the possibility of death in office. In that event, with the filibuster gone, Democrats would find themselves powerless to prevent a stalwart liberal from being replaced by a hard-right conservative, thus pushing the Supreme Court even further rightward for a generation or more. The smarter political move would seem to be to save the filibuster for that eventuality. Yes, it’s possible that Republicans could simply use the nuclear option at that point, but Democrats would arguably be better positioned to make a stand in that situation, and possibly even succeed in blocking the nomination than they are now.

Instead, the Democratic base seems to be insisting that their Senators use every effort to block Gorsuch even though it will likely lead to an outcome they would likely come to regert. That is, of course, their choice, but it doesn’t seem like very smart politics to me.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Sleeping Dog says:

    It is past due that the filibuster be retired. To my liberal friends I say that if you want to control congress then win elections. Turning out to vote only in Presidential election years is not how you control Congress, governor’s mansions and state legislatures.

    Gorsuch will in all likelihood, be no worse than Scalia

    Like or Dislike: Thumb up 9 Thumb down 4

  2. Daryl's other brother Darryl says:

    As I’ve argued several times since Gorsuch’s name was first placed in nomination, and as Steven Taylor argued this morning, this seems like a strange political hill for Democrats to die on.

    Republicans are going to nuke the filibuster in any case so what’s the difference? The last thing you want to be seen as doing is simply rolling over for what will be the only win in Comb-over Donnie’s first 100 days. You might as well have them do it now and use it to fund raise and to make sure people remember it when the mid-terms roll around.
    Dumb Don’s RCP average today is 40.1 approve/53.3 disapprove. Republicans nuking the filibuster isn’t likely to help that any.

    Highly-rated. Helpful or Unhelpful: Thumb up 20 Thumb down 0

  3. Lit3Bolt says:

    Doug, in what circumstances do you see Mitch McConnell or Trump honoring a 60 vote threshold and nominating their own version of Merrick Garland?

    They’ll simply use the nuclear option and laugh at the Democrats for “useless political theater” one way or another. If RBG died during the last minute of Trump’s presidency, I could see a Republican nominee being nominated and seated with 51 votes with 30 seconds to spare.

    I’m bemused by both you and other conservative positions that “Dems should keep their powder dry” for the next SCOTUS fight. It’s hard to take this as genuine advice rather than ideologically motivated reasoning, but then Dr. Taylor chimed in as well.

    So I guess my question is this: in what circumstances, given the death of a liberal justice, does the filibuster help Democrats? Because Democrats could have every advantage in terms of politics, narrative, and media, but that theory still counts on 1) Trump being moderate, and 2) Mitch McConnell being moderate.

    Whatever political pressure the Democrats could apply, even if the entire media were on their side as well as DC itself, the pressure from Republican donors, lobbyists, and the base would still be greater in regards to a SCOTUS pick.

    Highly-rated. Helpful or Unhelpful: Thumb up 23 Thumb down 0

  4. gVOR08 says:

    but his presence on the Court would do nothing to change the ideological balance of the Court from where it was before Justice Scalia died in February of last year

    Neither in the text of the Constitution nor by channeling the original intent of the Founders have I found any requirement that the ideological balance of the Court be maintained. And this seems to be an implicit admission that Gorsuch is, like Scalia, a right wing ideologue. Yes, you’ll say well within the mainstream, but the mainstream of the Republican Party has moved a long way right in the last many years.

    Highly-rated. Helpful or Unhelpful: Thumb up 16 Thumb down 0

  5. @Lit3Bolt:

    in what circumstances do you see Mitch McConnell or Trump honoring a 60 vote threshold and nominating their own version of Merrick Garland?

    Where did I even imply this is a possibility? I’m not sure why you’re hung up on Merrick Garland, his nomination has been dead for three months and it’s time to move on.

    So I guess my question is this: in what circumstances, given the death of a liberal justice, does the filibuster help Democrats? Because Democrats could have every advantage in terms of politics, narrative, and media, but that theory still counts on 1) Trump being moderate, and 2) Mitch McConnell being moderate.

    The argument that Dr. Taylor and I are both making is that by preserving the filibuster for a more consequential appointment, Democrats leave open the possibility that they could put themselves in a stronger political position to actually prevent a real shift in the balance of the Court, or at least force the GOP to put forward a more moderate nominee than they might otherwise choose. .Yes, the effort could fail then too but at least it would be a fight worth fighting. As it stands, Democrats are going to waste their last available option on a nomination that will do nothing to change the balance of the Court and the only reason they’re doing it,, it seems, is to prove to their own base that they can “fight” even if the fight is one they will clearly lose. I don’t see a political upside to that.

    Hot debate. What do you think? Thumb up 3 Thumb down 17

  6. @gVOR08:

    Only someone who is incredibly naive would believe that a Republican is going to appoint anything other than a Justice who leans to the right and that a Democrat is going to appoint one who leans to the left.

    Like or Dislike: Thumb up 4 Thumb down 13

  7. al-Alameda says:

    Now that Democrats are likely going to get thrown out of the ballgame, they damned well better get their money’s worth.

    This should be the ‘kick-off’ to an 18 month period of engaging hard fights on appropriation bills, publicizing through proxies the various conflict and ethics problems with the president and his associates, and so forth. They hold no power to initiate investigations but they have the ability to publicize often, and through various media outlets and platforms, all manner of Republican wrongdoing.

    It’s important for Democrats to remember, there is no downside to these hardball tactics. Republicans shutdown government twice in the past 5 years, refused to hold hearings on a nomination to the Supreme Court, and it cost them nothing, no political price was paid.

    Highly-rated. Helpful or Unhelpful: Thumb up 27 Thumb down 0

  8. teve tory says:

    Republicans are going to nuke the filibuster in any case so what’s the difference?

    Some people are under the delusion that if dems roll over on Gorsuch, some republicans will totally honor the filibuster when their chance comes to get the 5th reliable conservative on the court.

    Bless their hearts.

    Highly-rated. Helpful or Unhelpful: Thumb up 20 Thumb down 0

  9. @teve tory:

    It has nothing to do with what Republicans might or might not do, it has to do with Democrats reserving the last weapon they have right now for a nominee that actually matters.

    I find it astounding that people who comment on politics have such little understanding of how it actually works.

    Hot debate. What do you think? Thumb up 4 Thumb down 16

  10. teve tory says:

    it’s not a weapon. I know you can’t admit that, but pretending it is over and over is just embarrassing yourself.

    Highly-rated. Helpful or Unhelpful: Thumb up 23 Thumb down 0

  11. al-Alameda says:

    @Doug Mataconis:

    It has nothing to do with what Republicans might or might not do, it has to do with Democrats reserving the last weapon they have right now for a nominee that actually matters.

    I understand the tactics you’re recommending, and I generally agree. However, I admit, I think the result – assuming Republicans still control Congress at the time of a next nominee – would be Republicans choosing to eliminate/suspend the filibuster rule.

    Like or Dislike: Thumb up 2 Thumb down 1

  12. SKI says:

    @teve tory: this.

    Doug , claiming this is a weapon is a denial of reality.

    As I said in the other thread, that you and Steve can’t understand the electoral political reality that people only support leaders who fight for them doesn’t mean it doesn’t exist.

    You play hard to win the game, even if you know you are incredibly likely to lose today because fighting to win, even if you lose, makes you more likely to win later. Quitting – and make no mistake that is exactly what you are arguing for – breeds losing.

    Highly-rated. Helpful or Unhelpful: Thumb up 18 Thumb down 1

  13. Argon says:

    Doug, do you think the filibuster strengthens or weakens the moderates / centrists in the parties? The filibuster is a convenient means of justifiable denial.

    Like or Dislike: Thumb up 2 Thumb down 0

  14. gVOR08 says:

    @Doug Mataconis:
    Leans?

    Like or Dislike: Thumb up 4 Thumb down 0

  15. teve tory says:

    I’m bemused by both you and other conservative positions that “Dems should keep their powder dry” for the next SCOTUS fight.

    He committed to it and now he can’t admit he was wrong.

    Like or Dislike: Thumb up 3 Thumb down 0

  16. Moosebreath says:

    @Doug Mataconis:

    “I find it astounding that people who comment on politics have such little understanding of how it actually works.”

    I can only assume you were looking in a mirror when you said this, since there is no other reason for you to assume that if the Democrats forebear on filibustering Gorsuch, Republicans will not use the nuclear option whenever the Democrats next filibuster a Supreme Court nominee, “consequential” or not.

    Like or Dislike: Thumb up 10 Thumb down 1

  17. Lit3Bolt says:

    @teve tory:

    More like conservatives want bipartisan support from vulnerable Democratic Senators, in an effort to mainstream their corporate-feudalism positions.

    I’m dismayed by Dr. Taylor’s agreement though. The “Democrats look bad by defying a Harvard educated conservative princeling” seems to be the conventional wisdom.

    Like or Dislike: Thumb up 9 Thumb down 0

  18. Yolo Contendere says:

    @Doug Mataconis:

    by preserving the filibuster for a more consequential appointment, Democrats leave open the possibility that they could put themselves in a stronger political position to actually prevent a real shift in the balance of the Court, or at least force the GOP to put forward a more moderate nominee than they might otherwise choose.

    You know, you might get less push-back if you actually showed your work instead of relying on Underpants Gnomes reasoning. Kind of like what other people are doing to demonstrate to you that waiting until next time doesn’t actually gain Democrats anything, in spite of your carelessly dismissing their specifics.

    Like or Dislike: Thumb up 11 Thumb down 0

  19. Most people don’t know or don’t care about the Justices of their Supreme Court, in any country. Evangelicals may care because of Roe v. Wade, Hillary could have used the issue to energize their base, but most people don’t care. Yes, fear of political consequences was used in the Clarence Thomas and Robert Bork nominations, but that only shows how the political consequences of SC nomination votes are narrow.

    Even with Republicans spending a lot of money with this people don’t care. In two years few people will care wether Joe Manchin and Claire McCaskil voted for Gorsuch.

    Like or Dislike: Thumb up 6 Thumb down 0

  20. Moosebreath says:

    “Senate Committee Advances Gorsuch Nomination As ‘Nuclear Option’ Becomes Inevitable”

    Once again, the soft bigotry of low expectations rears its head. The implicit assumption is that the Republicans are not responsible for their own actions and have no ability to control themselves, while Democrats are responsible not only for their own decisions, but for the ones Republicans make as well. Republicans are treated as if they were either poorly programmed robots or infants.

    Highly-rated. Helpful or Unhelpful: Thumb up 24 Thumb down 3

  21. Gustopher says:

    If the filibuster cannot be used, then it is just a symbol, and if the Republicans destroy it, well, they own the result.

    From that standpoint, it might be better to wait. If Republicans overturn Roe v. Wade, which is a very real possibility over the next four years, I think they will have a hard time getting elected for the next 12-16 years, especially if every Republican Senator had to vote to destroy centuries of tradition to make it happen.

    Abortion is unpopular. Access to abortion is popular but not spoken of.

    20-25% of America cares about banning abortion. A similar chunk care very deeply about keeping it legal. That middle? They just don’t want to think about, mostly want access, and don’t think the Republicans are all that serious when they say they want to ban it.

    Like or Dislike: Thumb up 5 Thumb down 0

  22. Lit3Bolt says:

    @Moosebreath:

    A googleplex this.

    Why are Republicans held to the minimal standard? FOR EVERYTHING?

    Shorter Doug Mataconis: “If treason helped defeat Hillary Clinton, that’s on her.”

    Enablers.

    Highly-rated. Helpful or Unhelpful: Thumb up 20 Thumb down 1

  23. Mikey says:

    @Lit3Bolt: Didn’t someone call that “the soft bigotry of low expectations?”

    Like or Dislike: Thumb up 5 Thumb down 0

  24. Lit3Bolt says:

    @Mikey:

    Too cerebral.

    It’s also known as “they’re on my side, it’s all good.” Whether it’s Russians, Saudis, or China, the seeming “sovereign” citizens suddenly cease to give a fcuk.

    Like or Dislike: Thumb up 4 Thumb down 0

  25. DrDaveT says:

    @Doug Mataconis:

    The argument that Dr. Taylor and I are both making is that by preserving the filibuster for a more consequential appointment, Democrats leave open the possibility that they could put themselves in a stronger political position to actually prevent a real shift in the balance of the Court

    You think that a minority of Democrats could actually prevent anything the majority of Republicans in the Senate want to do???

    And you call us naive?

    Seriously, Doug, think this through. The Democrats can either make a big show of getting nuked in a good cause — thereby both encouraging their base AND establishing for posterity who is to blame — or they can give in without a fight, in order to be able to later either give in without a fight again, or lose again without the symbolic value. In what universe is that a better option?

    I can’t tell whether you’re in complete denial about how different this Senate is, or about how dangerous a candidate Gorsuch is for non-powerful Americans, or both. Being essentially another Scalia is pretty much like being essentially another Dahmer, if you’re poor or black or of nontraditional gender.

    Like or Dislike: Thumb up 15 Thumb down 1

  26. Frankly, I thought that most statements from Gorsuch so far are completely inane.

    Like or Dislike: Thumb up 4 Thumb down 0

  27. teve tory says:

    Democrats leave open the possibility that they could put themselves in a stronger political position to actually prevent a real shift in the balance of the Court

    This is sheer nonsense.

    Like or Dislike: Thumb up 9 Thumb down 1

  28. Guarneri says:

    My, my. Particularly whiny today aren’t we, boys and girls?

    And then we have this illuminating observation:

    “Being essentially another Scalia is pretty much like being essentially another Dahmer, if you’re poor or black or of nontraditional gender.”

    And you guys wonder why you are losing everything from dog catcher to President. Maybe you can get Susan Rice on TV to blame it all on a YouTube video. Better than looking in the mirror and admitting you all are totally divorced from reality I guess. You’re doing a heckuva job. Keep it up.

    Poorly-rated. Helpful or Unhelpful: Thumb up 3 Thumb down 27

  29. Jim Brown 32 says:

    Good to see the Dems growing some stones. This is not about Gorsuch–screw him. Screw Merrick Garland too. They are meaningless. No this is (and should be) about signaling that you’re done slap boxing with someone who’s boxing with closed fists.

    The Democrats need to make a show that they are going full on bare-knuckle boxing–and follow though with it. BE THE PARTY OF NO. These far right wingers are out of control–and they are using norms and traditions against you. Its time they learn the value of the norms and traditions–that will never happen while Democrats are taking the high road in everything.

    Like or Dislike: Thumb up 11 Thumb down 0

  30. MBunge says:

    It is genuinely depressing to see that the same political idiocy that gave us Democratic Presidential nominee Hillary Clinton is still alive and well. Since Mataconis seems to be reluctant to dumb it down enough for some to understand, let me try.

    You don’t pick a fight over Gorsuch because no one besides you cares. The public doesn’t care. The media doesn’t care. Gorsuch is undeniably qualified intellectually and his addition to the Court will not significantly change its composition or the kind of decisions it makes. When the GOP invokes the “nuclear option,” the public and the media will shrug their shoulders because they quite correctly see Gorsuch joining the Court as no big deal.

    They will, however, think it is a very big deal if a liberal Justice bows out and Trump picks someone who will seriously and perhaps radically change the nature of Supreme Court rulings. They will be primed for that to be a very high profile fight…except Democrats will have already thrown away the most high profile moment of theatre that fight could have.

    When Republicans use the “nuclear option” to confirm Gorsuch, it might not even be the biggest news story that day. If they have to use it to confirm the Justice who will be the vote to overturn Roe v. Wade? That would be the biggest news story for weeks, maybe months, and all that time Democrats could be hammering away at Republicans.

    And if you still can’t grasp that, answer this question. Why do they blow up the Death Star at the end of “Star Wars” instead of the middle of the movie?

    Mike

    Like or Dislike: Thumb up 4 Thumb down 14

  31. Ig'nint in Daejeon says:

    @MBunge:

    And if you still can’t grasp that, answer this question. Why do they blow up the Death Star at the end of “Star Wars” instead of the middle of the movie?

    Because it makes better theater, of course. Then again, life isn’t a movie, is it?

    Like or Dislike: Thumb up 8 Thumb down 1

  32. Ig'nint in Daejeon says:

    Or maybe it is in Bungeapotamia.

    Like or Dislike: Thumb up 2 Thumb down 0

  33. SC_Birdflyte says:

    @al-Alameda: Indeed. The GOP will trumpet Gorsuch’s confirmation as if it were Napoleon taking Moscow. The Democrats need to focus on ways to make the next two years like the retreat from Moscow.

    Like or Dislike: Thumb up 7 Thumb down 0

  34. Rick DeMent says:

    The test of whether or not anyone actually believes that this idea that SCOTUS nominees should legitimately not be voted on in an election year, it to see what happens in the wake of invoking the nuclear option. Does anyone here honestly believe that if there is an appointment to be made starting in November of 2019 that the republicans will give a whit about that notion and simply restrain themselves from making the appointment?

    Does anyone think they would actually codify that idea by writing it into senate rules? If anyone wil willing to try and tell me that that “rule” will even cross the mind of any Republican in 2019 then please do, I could use the laugh.

    Like or Dislike: Thumb up 8 Thumb down 0

  35. SenyorDave says:

    When McConnell deprived President Obama of a vote on Garland, it was a nuclear option. The rest is fallout.— Adam Schiff (@RepAdamSchiff) April 4, 2017

    Highly-rated. Helpful or Unhelpful: Thumb up 18 Thumb down 1

  36. michael reynolds says:

    @Doug Mataconis:

    There is no filibuster. It does not exist. There is nothing to ‘save’ for a better day.

    Highly-rated. Helpful or Unhelpful: Thumb up 15 Thumb down 0

  37. teve tory says:

    Doug’s got it in his head that if Dems show restraint now, in the future when McConnell gets the chance to put a 5th conservative on the court, he’ll allow himself to be impeded by the filibuster. In other words, Doug’s out to lunch.

    Like or Dislike: Thumb up 10 Thumb down 0

  38. Han says:

    @MBunge:

    And if you still can’t grasp that, answer this question. Why do they blow up the Death Star at the end of “Star Wars” instead of the middle of the movie?

    That’s right up there with “Why do I always find my keys in the last place I look?”

    Like or Dislike: Thumb up 3 Thumb down 0

  39. michael reynolds says:

    @MBunge:

    What are you upset about? A filibuster that can be set aside any time the majority wishes is not a thing. It is not a filibuster. It is merely illusion.

    So 41 Democrats are voting no. And your problem with that is what?

    Like or Dislike: Thumb up 12 Thumb down 0

  40. Surreal American says:

    @MBunge:

    OT but how did you commemorate Autism Awareness day, you asshole.

    Like or Dislike: Thumb up 0 Thumb down 4

  41. al-Alameda says:

    @Guarneri:

    And you guys wonder why you are losing everything from dog catcher to President.

    Hillary Clinton.65,844,610 votes, 48.2% Donald Trump 62,979,636 votes, 46.1%, and yes, America inadvertently elected the dog catcher with the mind of a 12 year old Russian boy president.

    Like or Dislike: Thumb up 7 Thumb down 0

  42. Mr. Bluster says:

    @al-Alameda:..America inadvertently elected the dog catcher pussy grabbing sexual pervert with the mind of a 12 year old Russian boy president.

    FTFY

    Like or Dislike: Thumb up 4 Thumb down 0

  43. If the Democrats want to block a fifth conservative Justice they should think about winning elections. It’s pretty difficult to block a uncontroversial Justice if you are in the minority. The idea of saving the filibuster for another Justice does not make sense – Trump is not THAT stupid – to nominate someone like Wlliam Pyor to the Ruth Bader Ginzburg seat, the only situation where a filibuster would be really useful.

    In fact, the biggest danger of filibustering Gorsuch is selling the idea for Democrats that they don’t need to win elections to block SC nominations.

    Like or Dislike: Thumb up 2 Thumb down 5

  44. Daryl's other brother Darryl says:

    @al-Alameda:

    yes, America inadvertently elected the dog catcher with the mind of a 12 year old Russian boy president.

    …who Guarneri thinks is absolutely fwcking brilliant.

    Like or Dislike: Thumb up 3 Thumb down 0

  45. Tyrell says:

    @DrDaveT: This isn’t the time for a big frontal assault. Judge Gorsuch has great credentials and I have not heard any legitimate complaints from Democrats about this man. If they push back on this, they will be in danger of using up and losing their firepower when or if Trump gets to nominate another judge. They then might wind up with someone like that guy from Alabama.
    Democrats could do well by studying Pickett’s charge at Gettysburg: spectacular and historic; but also a suicidal blunder that cost General Pickett well over half his men. (Many a person has taken that same walk up the hill when they visit Gettysburg)

    Like or Dislike: Thumb up 1 Thumb down 10

  46. Jake says:

    Excellent

    https://www.youtube.com/watch?v=1htMItgWeHU

    Like or Dislike: Thumb up 0 Thumb down 7

  47. teve tory says:

    @Jake: Fox and Friends? Seriously? Steve Doocy and Brian Kilmeade, two of the dumbest motherfuckers on the planet?

    Come to think of it, that is just your speed, so carry on.

    Getting back to smart people, here’s Kevin Drum this morning:

    My own argument is a little different: Piss off, Republicans. You can keep whining about the 30-year-old rejection of Robert Bork forever—and I’m sure you will—but he got hearings and a fair vote. He was voted down because he was too extreme, and the next judge nominated by Reagan was approved 97-0 by a Democratic Senate. That was during an election year, by the way. You guys, by contrast, refused to even consider Merrick Garland because you didn’t want anyone nominated by Barack Obama to serve on the court. Just like you didn’t want anyone nominated by Barack Obama to serve on the Federal Circuit Court, so you filibustered all of his nominees.

    You can make up all the ridiculous “traditions” you want, but everyone knows what you did. And no party with even a pretense of a spine would let you get away with it. So of course Democrats are going to filibuster Gorsuch and make you go nuclear. You’re going to do it anyway the first time you need to, and everyone knows it. So what’s the point of putting it off?

    That’s it. That’s the only reason anyone needs. You took nuclear to the next level already, and it would be craven for Democrats to shrug and let you get away with it. You made this bed, now it’s yours to lie in.

    Highly-rated. Helpful or Unhelpful: Thumb up 21 Thumb down 1

  48. Daryl's other brother Darryl says:

    @Jake:
    hahahaha…Fox and Friends!!!!
    No wonder you are so ill-informed and mis-guided…

    Like or Dislike: Thumb up 6 Thumb down 0

  49. gVOR08 says:

    The New Yorker came in the mail this morning. Jeffrey Toobin has a good piece on Gorsuch and why he’s so dangerous.

    And Trump didn’t nominate Gorsuch simply because he knows how to follow precedent. He nominated Gorsuch because his career resembles a lab experiment synthesizing every trend in modern conservative thought.

    Also because he’s close to the Mercers, Trump’s billionaire boys club backer.

    Toobin describes the famous trucker case as “an opinion of almost Gothic cruelty.”

    Like or Dislike: Thumb up 7 Thumb down 1

  50. Pch101 says:

    Friends don’t let friends watch Fox “News”.

    Like or Dislike: Thumb up 4 Thumb down 0

  51. Steve V says:

    @Doug Mataconis:

    I’m not sure why you’re hung up on Merrick Garland, his nomination has been dead for three months and it’s time to move on.

    Bork’s nomination has been dead for decades. Why are we still hearing about it?

    Like or Dislike: Thumb up 14 Thumb down 1

  52. Jake says:

    @Daryl’s other brother Darryl:

    I knew Trump would win did you?

    Ha ha

    Like or Dislike: Thumb up 0 Thumb down 8

  53. Jake says:

    Your rabbit hole is great everything that you disagree with is wrong good luck with that philosophy.

    Like or Dislike: Thumb up 1 Thumb down 10

  54. Daryl's other brother Darryl says:

    @Jake:
    Trump lost by 3 million votes and nearly 3 percent.
    And he is just as ill-informed and mis-guided…and frankly, as stupid…as you are.

    Like or Dislike: Thumb up 8 Thumb down 0

  55. teve tory says:

    @Steve V: Indeed, The bork nomination was 30 years ago, and just last year Orrin Hatch was blaming the Garland situation on Dems’ behavior in 1987. Al Franken pointed out that Bork got a hearing and a vote, and Hatch got flustered and tongue-tied.

    Like or Dislike: Thumb up 11 Thumb down 0

  56. Rick DeMent says:

    @Daryl’s other brother Darryl:

    Actually he lost by closer to ten million after you include the third party vote.

    Like or Dislike: Thumb up 4 Thumb down 0

  57. Jack says:

    @Rick DeMent:

    Actually he lost by closer to ten million after you include the third party vote.

    That and $7 will get you a cup of crappy coffee at Starbucks. Anything actually relevant you want to share?

    Like or Dislike: Thumb up 0 Thumb down 10

  58. Gavrilo says:

    @Steve V:

    Bork’s nomination has been dead for decades. Why are we still hearing about it?

    Because that was when Democrats began the politicization of SCOTUS nominations. It took 30 years for Republicans to follow suit.

    Like or Dislike: Thumb up 2 Thumb down 10

  59. SenyorDave says:

    @Jake: Ha ha

    I was going to say “What are you, a six year old”, but I forgot that my granddaughter is six and has outgrown that stage. I’ll go with four, since my grandson still SOMETIMES acts that way.

    Like or Dislike: Thumb up 6 Thumb down 0

  60. SenyorDave says:

    @teve tory: Fox and Friends? Seriously? Steve Doocy and Brian Kilmeade, two of the dumbest motherfuckers on the planet?

    Gretchen Carlson used to be on Fox and Friends, and John Stewart once referred to her as the “smart lady meat in a doofus sandwich” .

    Like or Dislike: Thumb up 6 Thumb down 0

  61. HarvardLaw92 says:

    @Gavrilo:

    I’m guessing that’s why they voted to confirm Souter 90-9?

    SCOTUS nominations have ALWAYS been political. To pretend otherwise is the essence of being disingenuous.

    Bork was a spectacularly, horribly, monumentally bad choice.

    To pretend otherwise is the essence of being stone cold stupid.

    Like or Dislike: Thumb up 14 Thumb down 0

  62. al-Alameda says:

    @Jack:

    That and $7 will get you a cup of crappy coffee at Starbucks. Anything actually relevant you want to share?

    Glad you asked. Evidently, according to conservative media, Jared Kushner is texting talking points to Joe Scarborough.

    Would you like some popcorn?

    Like or Dislike: Thumb up 4 Thumb down 0

  63. Gavrilo says:

    @HarvardLaw92:

    Souter was a liberal and consistently voted with the liberal wing of the court. I would think someone who went to Harvard Law would know that. He was nominated precisely because of his lack of a paper trail because Bush knew the Dems were going to politicize it, just like they had with Bork (and like they would later do with Thomas.)

    Like or Dislike: Thumb up 0 Thumb down 11

  64. al-Alameda says:

    @Gavrilo:

    Souter was a liberal and consistently voted with the liberal wing of the court. I would think someone who went to Harvard Law would know that.

    He was a New England conservative, not a new breed fire-breathing sunbelt conservative.

    Like or Dislike: Thumb up 9 Thumb down 0

  65. HarvardLaw92 says:

    @Gavrilo:

    I imagine that you’d consider anyone who isn’t to the right of Attila the Hun a liberal. Of course Dems are going to put up a fight against ultra far-right Bircher nominees. Just like Republicans will put up a fight against born again tree hugger lefties. That’s the way of the world.

    Like I said, SCOTUS nominations have ALWAYS been political. To pretend otherwise is the essence of being stone cold stupid (but considering the addressee, now we’re just getting redundant).

    Like or Dislike: Thumb up 6 Thumb down 0

  66. HarvardLaw92 says:

    @al-Alameda:

    not a new breed fire-breathing sunbelt conservative.

    American history has been one long series of conflicts driven by the South. The region is utterly, completely incompatible with the rest of the country, possibly with civilized society in general.

    I’ve said it before – we should have just let them leave when we had the chance. Now we’re stuck with retrograde Uhmuhrka.

    Like or Dislike: Thumb up 6 Thumb down 0

  67. Mikey says:

    I’m on record a while back strongly opposing the notion the GOP would be short-sighted enough to exercise the “nuclear option.”

    Obviously, I was wrong in giving them so much credit. They are quite surely nothing if not short-sighted. Now I think they’ll do it.

    The Dems need to filibuster the crap out of Gorsuch, and have the GOP kill the filibuster, and then after 2018 when the anti-Trump wave sweeps the Republicans into Chesapeake Bay (where they will dissolve in all the pollution permitted by Trump’s idiotic gutting of the EPA) Ginsburg can retire and the Dems can confirm, by simple majority, Supreme Court Justice Barack Obama.

    Like or Dislike: Thumb up 7 Thumb down 0

  68. Moosebreath says:

    @Mikey:

    “then after 2018 when the anti-Trump wave sweeps the Republicans into Chesapeake Bay (where they will dissolve in all the pollution permitted by Trump’s idiotic gutting of the EPA) Ginsburg can retire and the Dems can confirm, by simple majority, Supreme Court Justice Barack Obama.”

    After 2020, not 2018. The chance of Trump and/or Pence nominating Obama is vanishingly small. The chance that both Trump and Pence are no longer in office and Speaker of the House Pelosi becomes President is also unfortunately vanishingly small.

    Like or Dislike: Thumb up 1 Thumb down 0

  69. Tyrell says:

    The people in Congress have lost the art of “you scratch my back, I’ll scratch your back”. How this country misses Johnson, Dirksen, Fulbright, O’Neill.

    Like or Dislike: Thumb up 0 Thumb down 5

  70. Mikey says:

    @Moosebreath: I can’t math. In my meager defense, I had a tooth pulled today. 50 years old and I still had all four wisdom teeth. Sadly, one started giving me problems and had to go.

    Like or Dislike: Thumb up 2 Thumb down 0

  71. al-Alameda says:

    @HarvardLaw92:

    I’ve said it before – we should have just let them leave when we had the chance. Now we’re stuck with retrograde Uhmuhrka.

    I’ve been saying for years that as great as Lincoln was, he made one big mistake – he didn’t let the South leave, and we’ve been paying for it ever since.

    When you put the Civil War in the perspective of what transpired after slavery was ended, it makes you wonder if the price the Union paid to ‘defeat’ the Confederacy was worth the cost? After all, we had virtual apartheid, segregation and Jim Crow for the next 100 years. Also, the South controlled congressional business for decades on end.

    I have relatives in Huntsville, Alabama who disagree with my take on this.

    Like or Dislike: Thumb up 2 Thumb down 0

  72. An Interested Party says:

    Ack…this thread is full of such dishonest arguments…

    I’m not sure why you’re hung up on Merrick Garland, his nomination has been dead for three months and it’s time to move on.

    Perhaps one is “hung up” on Merrick Garland because Mitch McConnell and his band of merry misdeeders stole a Supreme Court nomination away from President Obama, thereby making the Gorsuch nomination illegitimate…

    They will, however, think it is a very big deal if a liberal Justice bows out and Trump picks someone who will seriously and perhaps radically change the nature of Supreme Court rulings. They will be primed for that to be a very high profile fight…except Democrats will have already thrown away the most high profile moment of theatre that fight could have.

    There is no way that a Republican majority in the Senate will ever deny Trump a right-wing appointment to the Supreme Court, no matter what the Democrats do now, so there is nothing to throw away…

    Because that was when Democrats began the politicization of SCOTUS nominations. It took 30 years for Republicans to follow suit.

    …the most dishonest of all on this thread…as others have noted, at least Bork actually got a hearing and a vote, far more than Garland got…

    When you put the Civil War in the perspective of what transpired after slavery was ended, it makes you wonder if the price the Union paid to ‘defeat’ the Confederacy was worth the cost? After all, we had virtual apartheid, segregation and Jim Crow for the next 100 years. Also, the South controlled congressional business for decades on end.

    Of course this festering wound will only become worse as these people eventually become a minority…a pity for them that they won’t be able to enact a complete set of Apartheid laws, although they have certainly tried with their bogus “Voter ID” bullshit…

    Like or Dislike: Thumb up 8 Thumb down 1

  73. Tyrell says:

    @al-Alameda: And I know a lot of people around here who are also of the opinion that the Reconstruction period was a punishment and takeover of the South by powerful northern financial groups. This would not have happened if Booth had missed. Reconstruction: more like deconstruction. As a child I saw a lot of Civil War activities, discussions, historic sites, and memorabilia. A lot of people won’t let go.

    Like or Dislike: Thumb up 0 Thumb down 2

  74. teve tory says:

    @al-Alameda: “When you put the Civil War in the perspective of what transpired after slavery was ended, it makes you wonder if the price the Union paid to ‘defeat’ the Confederacy was worth the cost?”

    If the south had left, and become a third world country, I would have been born in that third-world country.

    Like or Dislike: Thumb up 3 Thumb down 0

  75. teve tory says:

    Josh Marshall: Opposing a Corrupt Transaction

    http://talkingpointsmemo.com/edblog/opposing-a-corrupt-transaction

    Like or Dislike: Thumb up 2 Thumb down 0

  76. SC_Birdflyte says:

    @Gavrilo: Not hardly. There was a filibuster against LBJ’s nomination of Abe Fortas to be Chief Justice in 1968.

    Like or Dislike: Thumb up 3 Thumb down 1

  77. Moosebreath says:

    @SC_Birdflyte:

    “There was a filibuster against LBJ’s nomination of Abe Fortas to be Chief Justice in 1968. ”

    Who was being considered by Congress in the last couple of months before a Presidential election. Kind of the opposite of the precedent Mitch McConnell cited in opposing Garland.

    Like or Dislike: Thumb up 4 Thumb down 0

  78. Daryl's other brother Darryl says:

    Turns out Gorsuch is no more brilliant than Jake…they are both plagarists.

    http://nymag.com/daily/intelligencer/2017/04/neil-gorsuch-accused-of-plagiarizing-parts-of-his-book.html

    Like or Dislike: Thumb up 3 Thumb down 0

  79. Daryl's other brother Darryl says:

    @Gavrilo:

    Bush knew the Dems were going to politicize it, just like they had with Bork (and like they would later do with Thomas.)

    I’m not sure politicize is the right word. Bork was clearly too radical and Thomas has proven to be incompetent and corrupt.

    Like or Dislike: Thumb up 3 Thumb down 0

  80. Grumpy Realist says:

    @HarvardLaw92: sort of like how the EU is looking forward to getting rid of the U.K….

    Like or Dislike: Thumb up 2 Thumb down 0

  81. dmichael says:

    @HarvardLaw92: While I sympathize with the belief that the South (confederate states) have been an obstacle to the progress of this county since before the Civil War, “letting the states go” would have relegated four million enslaved humans to a living hell.

    Like or Dislike: Thumb up 2 Thumb down 0

  82. al-Alameda says:

    @teve tory:

    If the south had left, and become a third world country, I would have been born in that third-world country.

    A couple of points:
    (1) I’m partially joking with my take on all of this.
    (2) Perhaps your parents would have immigrated to ‘Northern America” as did many of my family relations in Virginia, Tennessee, Louisiana, Arkansas and Texas in the early 20th century?

    Like or Dislike: Thumb up 0 Thumb down 0

  83. HarvardLaw92 says:

    @dmichael:

    Noted, but that necessitates that the alternative must be to occupy the defeated territory and impose policy that, forceably if necessary, rectifies the problems that the war was predicated on.

    After WW2, we forced ordinary Germans to confront the enormity of the evil that had taken place in no small measure due to their own complacency and complicity. In doing so we fundamentally (more or less) altered a society at its core.

    Contrast that with the aftermath of the Civil War – where we basically looked the other way in the name of expediency and “getting along” – and in doing so allowed the evil that was (and in many ways still is) the basis of the Southern social structure to fester and survive, indeed to thrive.

    Consider that what happened in Nazi Germany all occurred within the space of roughly 12 years. Slavery & white supremacism (and murder carried out to protect them) had already taken place in this country for 175 years by the time that the Civil War took place. For nearly 275 years before we
    Even tried to address the social rot which produced (and produces) them. Hell man, our own Constitution was predicated on the need to compromise with Southern evil.

    So no, unless we were prepared to finish the job – to radically and forcibly alter / crush the nature of Southern society post defeat such that it could take its place in a civilized world – we had no business setting off on that adventure in the first place. Tyrell (and evidently many of his peers) think Reconstruction lasted too long and was too punitive. Exactly the opposite – it was too kind and it didn’t last nearly long enough.

    Like or Dislike: Thumb up 5 Thumb down 0

  84. george says:

    @Rick DeMent:

    But including the 3rd party vote means Hillary lost too (she got less than 50%).

    Its unfortunate that there’s no good way to have 3rd (and 4th etc) parties in American elections; minority governments (ie parties with less than 50%) tend to be the best ones in Parliamentary systems because it forces them to work together.

    Some sort of coalition between Hillary, Stein and maybe Johnson (though I suspect his voters are more on the GOP than the Dem side) would have been the best outcome in this particular election – instead we ended up with the worst outcome.

    Like or Dislike: Thumb up 1 Thumb down 0

  85. george says:

    @HarvardLaw92:

    Though actually I think most people just vote for their team (ie their party) and don’t care any more about the actual views of their candidates than they care about say the fouls or misbehavior of the quarterback of their favorite team.

    Ever watch sports fans? You can see the same foul (say holding or pass interference) several times in a typical game. When its done by their team the fans will say it was no big deal, shouldn’t have been flagged. When more or less the identical is done by the opposition they say it was a game changer and had to be flagged.

    I think that’s the bottom line in this election. Pundits (on all sides) were saying this was not a normal election, it was for America’s soul, it went beyond normal politics. But the election results now show that in fact it was exactly a normal election – people voted for their team. Fans might think their team’s quarterback is an a-hole, but if they deliver championships they’re still cheering for him. And that sums up American politics (other countries too probably, though the two party system in America makes it more pronounced).

    I think for 90% voters what they actually thought of Clinton or Trump was irrelevant – they voted for their team.

    Like or Dislike: Thumb up 1 Thumb down 0

  86. al-Alameda says:

    @george:

    Ever watch sports fans? You can see the same foul (say holding or pass interference) several times in a typical game. When its done by their team the fans will say it was no big deal, shouldn’t have been flagged. When more or less the identical is done by the opposition they say it was a game changer and had to be flagged.

    I understand your point, however sports are not the pristine refereed events that many assume them to be.

    Have you ever noticed in a basketball game that superstar players often are NOT called for fouls while ‘ordinary players’ ARE. For example, Michael Jordan has the ball, he takes 2 long steps before the ball hits the court – traveling? Nope. ‘Ordinary Player’ does the same – Traveling? Yes indeed.

    Like or Dislike: Thumb up 1 Thumb down 0

  87. Tyrell says:

    @al-Alameda: Traveling is seldom called in pro games, some in college. When was the last time you saw palming called ?

    Like or Dislike: Thumb up 0 Thumb down 0

  88. george says:

    @al-Alameda:

    Good point. You see the same thing in hockey; hits that are legal against ordinary players are penalties against the superstars.

    To carry the analogy further, I suspect that the reason just about half the population doesn’t bother voting is because they’re not interested in “the game”, and have no favorite team in it. Which is why charismatic leaders like Obama, Bill Clinton (and yes, Reagan) often do so well – they get people interested in their career. But once that superstar leaves the team interest wanes again for these folks.

    How to convince people that politics is not just a game is well beyond me.

    Like or Dislike: Thumb up 0 Thumb down 0

  89. wr says:

    @SenyorDave: “Adam Schiff ”

    Or as I like to call him, Future Senator Adam Schiff.

    (If that damn Feinstein ever retires…)

    Like or Dislike: Thumb up 0 Thumb down 0

  90. al-Alameda says:

    @Tyrell:

    @al-Alameda: Traveling is seldom called in pro games, some in college. When was the last time you saw palming called ?

    “Palming”? They gave de-facto credibility to ‘palming’ by giving it a catchy name too:
    “Killer Crossover”!
    And stars like Isiah Thomas and Tim Hardaway could do whatever they wanted without getting called for palming or traveling.

    I always loved Michael Jordan’s “incredible first step” – yeah, because a quarter of the time he took 2 full long steps before putting the ball on the floor. Trrrrraveling! Oooops, it’s Michael so, no call.

    Like or Dislike: Thumb up 0 Thumb down 0

  91. wr says:

    @george: “But including the 3rd party vote means Hillary lost too (she got less than 50%).”

    You might want to flip through the constitution. There is no need to win more than 50% of the votes to win an election — just more than the next person.

    Like or Dislike: Thumb up 0 Thumb down 0

  92. Ig'nint in Transit says:

    @george: You can’t convince people that politics isn’t just a game; they see over and over again that it is just a game in the conduct of the Congress, the administrations, the parties. The fact that a bunch of Yahus have turned a very serious matter into a game is unfortunate, but I can’t help that.

    Like or Dislike: Thumb up 0 Thumb down 0

  93. george says:

    @wr:

    No argument on my part. But I was responding to a comment that Trump lost by closer to ten million because the poster counted all the votes not for a candidate as counting against that candidate; I was simply pointing out that using that criteria for losing (ie every vote not for you is against you) meant there was no winner this time.

    I suppose its a pointless discussion in any case, since its the electoral college that determines winners rather than popular vote. Doubly pointless, because its already done, and the goal now should be to win back the Senate in 2018 rather than redo the 2016 election.

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  94. Rick DeMent says:

    @george:

    But including the 3rd party vote means Hillary lost too (she got less than 50%).

    The point I’m trying to make is that, anyone arguing that Trump has some kind of “mandate” to stick a hook in the cheek of the American electorate and yank it hard to the right is seriously delusional.

    Like or Dislike: Thumb up 1 Thumb down 0

  95. teve tory says:

    Slate just discovered the Tit for Tat game theory argument i made this past weekend:

    http://www.slate.com/articles/news_and_politics/science/2017/04/game_theory_suggests_forgiveness_is_the_only_way_to_avoid_nuclear_winter.html

    Like or Dislike: Thumb up 0 Thumb down 0