Roundtable – Gorsuch and the Filibuster

Torchlight is proud to announce a new feature on the site: the Roundtable, in which members of the staff get together to discuss the news. This week’s panel consists of Senior Managing Editor Josh Kyu Saiewitz, Politics Editor Christopher Dahlin, Tech Manager James Griffith, Writer Jeremy Rosenlund, Art Director Blake Smisko, and Editor-in-Chief Tom Rich. The transcript has been lightly edited for clarity, and all citations and links were  added after the fact. The conversation happened on April 8. 

Tom Rich (Editor-in-Chief)

Welcome to the Roundtable. We’ve gathered some of our finest Torchlight staff together to talk about the news this past week. This week’s topic: Neil Gorsuch’s confirmation to the Supreme Court. Let’s have at it.

Christopher Dahlin (Politics Editor)

So as part of this, the filibuster has, as expected, been cut away from SCOTUS nominees.

Jeremy Rosenlund (Contributing Writer)

I’ve been trying to look at it from a historic point of view. It’s easy to get caught up with “unprecedented” in the moment and how the GOP is being rewarded for their shenanigans but what does it really mean long term? What does the degradation of the filibuster mean for both parties in four years, in ten?

Christopher

Also, the filibuster now only exists for legislation, and will the GOP ever actually get rid of

Jeremy

Only if the Democrats use it again on something the GOP really wants, which right now I can’t imagine what they’d want so badly, considering how quickly they abandoned the AHCA.

Christopher

I think that Republicans would not want to get rid of their opportunity for effortless grandstanding. Cruz, Rand and the like wouldn’t be able to have their “filibusters” if we got rid of ’em.

Tom

Do you think it’s at all likely that a hypothetical future Democratic Senate majority might get rid of the legislative filibuster? Say, if they were trying to pass single-payer?

Jeremy  

I think that’s hard to answer right now. It feels like the Democrats are trying to find their new role as underdogs and it’s going to change how they act in the near future

Christopher

Yeah, I think that current political status quo is in turmoil. I will say, for all everyone says they think Cruz’s face is Backpfeifengesicht, nothing approaches McConnel’s smug demeanor, especially when talking about Gorsuch.

James Griffith (Tech Manager)

If they have the opportunity to abolish the filibuster for single payer or a minimum wage raise and they don’t that would be disappointing.

Tom

He certainly is proud of himself. And, from a political knife-fighting perspective, he should be: he played some hardball and got pretty much exactly what he wanted out of it. Also, for the readers, “Backpfeifengesicht” is German for something like “a face in need of a slap.”

Christopher

Oh, no question that McConnell gambled and won on this. I just wonder, within myself, if Hillary had won, Republicans would somehow be howling for Garland and trying to deny the appointment at the same time, if I would demand Garland has strenuously. Also, they absolutely would get rid of the filibuster then, I think. Historically, the filibuster has basically never been used for things that the current Democratic party want. Only the historic Democratic party

Tom

I think that this leads us to a broader question, then: is the filibuster actually a good thing to have in the Senate? It’s not a part of our Constitutional checks and balances; it’s a relic of a change to the Senate rules back in 1806 that’s stuck around because Senators like to have that power. Should every Senator have the power to grind everything to a halt?

Jeremy

I think Obama’s term answered that question: no. The filibuster seems like a tool of obstructionism and that’s not healthy to our democracy.

Josh Kyu Saiewitz (Senior Managing Editor)

Hello! Sorry I’m late, everyone, it took me this long to get Senate confirmed.

Tom

I’m sure that John McCain wrung his hands and looked very sad while not doing anything useful about the delay.

James

I like the filibuster in theory, but it doesn’t seem very useful when only one side uses it, and takes it away as soon as it’s being used against them.

Tom

I think part of the problem with the filibuster is that it’s too easy to use, anymore. Because it doesn’t grind the whole Senate to a halt anymore, but only debate on the bill in question, it’s not as big a deal for a Senator to throw one down. Not to mention that nobody has to stand up and read the phonebook anymore.

Josh

I think we have to separate the value of the filibuster historically from the value of it now.

Christopher

Yeah, the problem isn’t the filibuster so much as the threat of the filibuster.

Josh

In the past you could argue both that it provided an important emergency switch for the minority power to hit as an extreme measure, and that in practice it was generally only used to delay civil rights progress. Today, the filibuster is used heavily by both sides to try and obstruct, and whether you feel like that’s ultimately best for the country depends on how much you’re in favor of change.

I think the Republican party right now is in favor of some seriously radical changes, contra classic conservatism, and McConnell is (probably correctly) predicting that the short term benefit of getting Gorsuch and, soon, impactful legislation like tax cuts, ACA repeal, voter suppression, education “reform”, etc., will do more to help his party they’ll be hurt in the long term. In a very real sense this is the GOP’s last best chance to ensure the Democrats don’t return to power for a long time, and they don’t do that by playing the victim to obstructionism.

Christopher

Yeah, Republicans at every level are basically trying to keep the last vestiges of preCold War culture intact.

Josh

My question is, do you think Gorsuch himself is unusually bad for the court? Or would he be business as usual if not for the Garland precedent and the nuclear option?

Christopher

I don’t think Gorsuch is effectively different than Scalia.

Tom

The latter, generally. I don’t like his rulings, and I don’t like his judicial philosophy, but under ordinary circumstances my sense has been that I’d grumble and wait for the next Democratic President.

Christopher

But the precedent is incredibly damaging.

Tom

Agreed. No Justice should have been seated until Garland got a hearing.

James

I don’t think giving Garland a hearing mattered much after the election.

Christopher

There were 5 months before that, though.

Josh

There’s a decent argument to be made that by refusing to vote for Garland, McConnell energized evangelical voters and won Trump the election. (Which is separate from the role McConnell seems to have played in shielding the Trump campaign by not allowing the Russia investigation to go public. Mitch certainly earned his Wheaties in 2016.)

Christopher

Oh, I absolutely wouldn’t deny any of that.

Josh

Here’s the important question: is there any way back from this now? Or should Democrats simply accept that SCOTUS is total partisan war now, and for example start impeaching justices or court packing once they get back into power?

Christopher

Impeaching justices is a terrible idea. But yeah, the SCOTUS has always been a war, we just haven’t really cared until recently. I feel like sometimes things are the same as ever, and sometimes they are just remarkably broken, though. So maybe they haven’t been

What I mean is basically I don’t think anythings actually changed, we just feel like this is worse, because it’s more immediate to us.

Tom

I don’t have the numbers in front of me, but as I recall FDR’s court-packing attempt was incredibly unpopular. So if that remains the case, the Democrats probably don’t want to go down that road. An amendment forcing the Senate to vote on appointments in a timely manner would be one way to address the problem, but I don’t see the votes to do that coming together any time in a the near future.

Josh

Democratic voters need to learn to play hardball.

Tom

This has always been the problem with the Supreme Court, though; their power is far and away less codified than the other two branches. “The Chief Justice has made his decision; now let him enforce it” and all that. They don’t have any independent means to assert themselves on the other two branches, and it shows with the whole Garland showdown. I mean, the 8 of them can’t think an empty seat for this long is a good thing, right?

Christopher

If nothing else, they believe in the legal supremacy of SCOTUS. So I imagine no.

Tom

Again, an amendment, so more or less idle speculation, but I wonder if there’s any merit to letting the SC itself pick some percentage of its members. Give them a little independence from the other branches. Or is that just inviting the majority on the court to make itself even more of a majority?

Josh

I don’t see any rules changes that can really fix this situation. No system of government can effectively handle a significant anarchist faction forever. Rules only work if people approach them in good faith.

Christopher

Part of government requires the consent of the governed, yes.

Josh

In that sense maybe we should mourn the death of the filibuster, as the quirks of our system that slow progress have been acting as a check against our radical fundamentalists since at least 2000.

Tom

The quirks have, but did the filibuster in particular? I don’t think it really took off until the Obama Administration.

Josh

No, it’s just one of the quirks. But another one of those checks is gone.

Tom

Josh, we were talking before you get here about whether the legislative filibuster was likely to go away, and if a future Democratic Senate seemed likely to remove it. Any thoughts on that?

Josh

I think McConnell will do away with the legislative filibuster before then–it’s consistent with his strategy here–assuming the GOP manage to get something, anything, meaningful out of the House.

Christopher

The GOP need a piece of legislation they think is important enough to do away with it, though.

Josh

I don’t know yet what Democrats will do. They’re still in the early stages of becoming a party willing to sink to the GOP’s level–something I hope they learn to do, because the alternative is losing, and in losing, failing to fight for their important values.

Blake Smisko (Art Director)

I just thought Nate Silver’s article was interesting. The filibuster has historically been used to prevent progressive action so the GOP kind of shot itself in the foot?

Christopher

The Republicans aren’t going to give something up for the AHCA type stuff. If they manage to get massive tax reform through, maybe. But part of the problem is that the Senate is so close right now, any legislation that would be worth filibustering, might not make it through anyways.

And that would be a massive waste for them, especially as the filibuster has historically been conservatives’ friend. Not just to prevent progressivism, but also the theatricality they get out of the bullshit; Cruz and Rand in particular have used this in the past.

Tom

I agree that they’d need some big legislation to make disposing of the legislative filibuster worthwhile. But the beef between the Tea Party guys and the moderates makes it hard to advance anything, let alone anything big.

Christopher

Exactly. There’s just too much turmoil for them to give up the easy front page. Too much risk without an assured payoff.

Tom

And with the slow pace of Congress, they don’t have a lot of opportunities to move bills before we’re in another election year and everybody is playing for votes. Well, not everybody. But enough that it changes the math.

Josh

The next big push is for tax cuts, I think, and we might find that there’s more agreement there in the GOP than there was over health care.

I also think they might try passing it in the Senate first (they can do that, right?) to avoid having to signal too early in the House that they intend to remove the filibuster (by passing a bill beyond the scope of reconciliation). Then they could go to the House members and say “We killed the filibuster for this bill so you know it’s important to vote it through now.”

Christopher

Well, tax cuts is their other reconciliation attempt. And from what I hear, there’s actually more contention. Because there are the Republicans who think the president’s budget is utter crap, the Republicans who think it’s great, and everyone was relying on the AHCA for numbers.

Tom

Bills “for raising revenue” have to originate in the House. I’m not sure if there are any parliamentary tricks to get one to originate in the Senate. Or if a strict tax cut counts as “raising revenue.”

Christopher

Also, they still have to figure out how stuff like the wall (which the Dems better hammer the stuffing out of Republicans on), and Trump’s trillion dollar infrastructure plan.

Tax cuts do not count as raising revenue. It is reducing revenue. Republicans say it will raise revenue through investment and blahblahblah but A)that doesn’t count for the purposes of House writing the bill, and B)It isn’t true.

Josh

Yeah. I guess that’s the question overall; do these procedural changes help the GOP get around the internal disagreements that are holding up their legislative agenda? Garland aside, it doesn’t seem like the Democrats in Congress are really the sticking point when it comes to obstruction.

Christopher

Like I said, it’s hard to say with the Senate so close. Republicans have to worry about literally every single member of the Senate, so if they go too crazy, they will peel off more than Collins, and if they go too sensible, then they have other problems. However, since it’s clear no one in power cares about precedent at the moment, who knows?

Another part of the problem is that for the last couple of decades, the executive has been amassing more and more power and authority, because the government has needed to run, and Congressional and Senate Republicans haven’t given a damn about governing. And suddenly, we have a massive power vacuum because the executive doesn’t know how the branch works.

Even beyond Trump’s inability to work the levers of power, his lack of appointments and so on have basically meant the bureaucracy is doing everything it normally does, but it doesn’t necessarily have the explicit will of the president, just the authority

Which is fine for right now, but in 8 months, 12 months, 3 years? Who knows.

Tom

Which is in some ways good, because the explicit will of this particular President is not to be trusted. But just letting the bureaucracy rattle onward of its own accord isn’t a great long-term plan.

Christopher

Exactly.

Josh

Between malevolence and incompetence, I’ll take incompetence.

Christopher

Like, by nature of these are people going to work and wanting to get work done, they are going to find ways to make it easier for them, and so they will develop workarounds because the standard lanes of communication and workflow don’t necessarily exist. And that’s not even taking into account the ludicrous budget set out by the President.

Josh

I think we’re ready for final thoughts here, on Gorsuch, the filibuster, and the state of the GOP/Trump’s agenda going forward.

Christopher

The precedent of how Garland was treated is much more damaging than Gorsuch himself. Gorsuch is basically status quo with Scalia, and part of what hurts is turning that seat more moderate would have been good for the U.S., so it’s disappointing to lose that. But the maneuvering involved to get him there is what people will remember, I think.

Josh

Personally I agree this moment isn’t all that damaging in and of itself (relatively speaking; Gorsuch replacing Scalia isn’t that much of a change, even if it will harm the country for however many decades he sits on the bench), but it’s definitely an important signal that the GOP will break any norm in order to get what they want… But even that won’t necessarily be enough, given the leadership vacuum and the party’s strong disagreements.

Tom

Agree on Gorsuch. I’m not particularly broken up about losing the filibuster, or about the potential lost of the legislative filibuster; they’re historic oddities, and have been more about grandstanding and theatrics than actually halting bad ideas.

Josh

So you think this is ultimately a good thing and ten years from now Democrats will be glad it’s gone?

Christopher

Filibuster specifically? Probably.

James

I think that really depends on how much Gorsuch erodes free elections.

Tom

Not necessarily a “good” thing, and I think both parties will have cause in the future to wish they had it. But I think it was more bark than bite, overall.

And that’s about all the time we have for this week’s roundtable. Thanks, everybody, for a lively discussion.

Like everything at Torchlight, the Roundtable is an experiment, and we welcome your feedback.

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