Wednesday, February 1, 2017

Do: ignore the Supreme Court nominee and focus on the Muslim ban.

Call your senators and tell them you're outraged --  but over the Muslim ban, not the new Supreme Court nominee.  Tell them you want them to fight tooth and nail but over something they can win.

We all know the story of the Supreme Court vacancy.  It opened up almost a year ago, but the Senate Republicans -- in charge of confirming Obama's nominee, Merrick Garland -- refused to hold hearings or a vote.  Their arguments were embarrassingly weak, fig leaves to cover the extremity of this decision; "Joe Biden once suggested the same thing in a hypothetical argument about a vacancy that didn't actually exist," etc.

So let's start by saying that the behavior of Leader Mitch McConnell and the Senate Republicans has been a grotesque subversion of the Constitution, institutional norms, and general fairness.  In service to the McConnell Rule ("Norms and traditions don't matter unless they help us") and an untempered pursuit of power, they have damaged the very things they claim to reverence.

But it's done.  Sorry, but that fight was lost with Trump's victory.  Voters just plain didn't care about the stolen seat -- at no point during the presidential race was it ever a remotely important issue to most Americans.

Now Trump has nominated a justice, and many people want Senate Democrats to go with the McConnell Rule, too, by filibustering the nominee, Neil Gorsuch.  It may once have been normal for senators to defer to the president's choice unless that choice was radical, but norms don't matter, these people say.  Maximum obstruction is the way to go, they argue, since the election proved that voters won't care.  It's true that the Republicans could then simply eliminate the filibuster for Supreme Court nominees (as Harry Reid did for lower court judges) but since the filibuster is just another norm, who cares?

I have to admit that there is some merit to this argument.  At the least, Democrats could slow the whole thing down.  But a lot of people aren't sure, and opinion is all over the place.  The Washington Post's Aaron Blake wrote a column about how Democrats might overplay their hand, but he's so unpersuasive he basically undermines his own point.  New York's Jonathan Chait argues that the SCOTUS filibuster is already gone, and that accordingly it just comes down to who tears off the band-aid.  Gorsuch is going on the Supreme Court, he says, but it can either happen the easy way or the hard way... and he argues the hard way.  He doesn't spend much time talking about the gains that Democrats can expect from pushing such a hard fight, but basically it's that it would make the Democratic base very happy.

But that's not the best choice.  We shouldn't be fighting the last fight, we should be fighting the current one.

First, there's a matter of tactics.  These days, it's pretty common to hear people say that Trump's latest outrage is just a distraction from whatever it is the speaker thinks is the most important thing.  As I noted yesterday, I think Trump is pretty incompetent and not actually capable of that level of sophistication.  He says and does a continual stream of unjust and dumb things because he is continuously unjust and dumb, not because he's employing a magical smokescreen.  But if anything was a distraction, it's the SCOTUS pick.  The Muslim ban has overwhelmed the administration with cycle after cycle of terrible headlines, and any idiot could see they needed to change the narrative.  And they weren't even subtle about it: they moved up the planned announcement date; they did it on live television during prime-time; they deliberately said that the two "finalists" were both in town to create false drama.  It was just one rose short of a The Bachelorette finale.

So we should be focusing on the things that matter and the things we can change.  Democrats can and should slow this down as much as possible -- the more time spent on this, the longer it will take for them to repeal the ACA -- but a filibuster will only achieve the loss of the filibuster, perhaps for all votes.

The smart thing to do is for the Democrats to vote for cloture (that is, not filibuster) in exchange for a slower confirmation process.  It would be trading nothing for something we want: more delay.  Every minute spent on Gorsuch is a minute that the Senate is not enacting Trump's terrible agenda.  Or trade it for a vote on the Muslim ban.  Filibustering achieves nothing, so we shouldn't be upset if our senators don't do it.

The other reason why it's smart for the Democrats in the Senate to just drag their feet, rather than filibustering, is that Gorsuch united the Republicans.  They're delighted with the pick -- groups like evangelical Christians made a deal with the devil to get this nominee, and dwelling on it will only make them like Trump more, by extension.  Gorsuch can't even be fairly called radical or outrageous... he's a mainstream conservative, brilliant, and incredibly well-credentialed judge.

In case it needs to be put more clearly: every day that a filibuster is in the headlines is a day that dead Syrian children are forgotten.  Call your senators and tell them that.

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