Wednesday, February 22, 2017

Why Senate Democrats Have to Filibuster Judge Gorsuch

Let's get three uncontroversial propositions out of the way at the outset.  First, Judge Neil Gorsuch is unquestionably qualified to serve as a Justice on the Supreme Court of the United States.  Second, so is Judge Merrick Garland.  Third, the Senate's refusal to hold hearings and vote on Judge Garland was unprecedented in modern times (by which I mean it has not happened since the mid 19th century).  

Yes, it is possible to draw distinctions between, say, President Reagan's nomination of Anthony Kennedy to the Court and President Obama's nomination of Garland, because Reagan nominated Kennedy in November 1987, which was the calendar year prior to the election, and Obama nominated Garland in March 2016, which was the calendar year of the election.  But if you think that distinction makes a difference, then you might as well take your confirmation bias elsewhere and stop reading now.  

As Amy Howe catalogued over at SCOTUSblog, at least six Supreme Court Justices have been nominated and confirmed in an election year.  Yes, it is true that President Johnson's nomination of Henry Stanbery was not acted on by the Senate -- but that was Andrew Johnson, not Lyndon.  So one must go back to 1866 to find a comparable example to the McConnell-led Senate's treatment of Judge Garland. 

For Democrats to vote on Judge Gorsuch is to concede the legitimacy of the process that denied a hearing and vote to Judge Garland.  They ought to filibuster, not because Gorsuch is unqualified, but because his nomination is illegitimate.  

Several reasons have been offered for not mounting a filibuster.  The first is that twelve Senate Democrats are up for reelection in states that either went or almost went for Donald Trump.   The second is that, with only 48 Senate seats, the Democrats are vulnerable to the so-called nuclear option, by which Republicans could, by simple majority vote, eliminate the filibuster.  

It's hard to know how to respond to the first concern, other than to say that voting to confirm Supreme Court justices is among the most serious responsibilities a US Senator has, so if a Senator makes even that duty subservient to getting reelected then she or he should be the subject of a chapter in a book entitled Profiles in Cowardice.  Put more colloquially, sometimes doing the right thing runs a risk you will get your ass handed to you.  If a Democratic Senator is not willing to do the right thing when the stakes are highest, why should the Democrats want that person to represent them?

If the worry about reelection reflects misbegotten priorities, the concern over the filibuster reflects too simplistic an analysis.  Let's do a little game theory analysis by articulating the four scenarios facing the Senate and seeing where they lead:

Sc1:  If the Democrats do not filibuster, Gorsuch will be confirmed in a straight up or down vote. 

Sc2:  The Democrats mount a filibuster, but the Republicans  eventually pick up eight Democratic votes, and thereby reach the 60 needed for cloture, which will then lead to an up or down vote for Gorsuch, and confirmation.

Sc3:  The Democrats mount a filibuster, and the Republicans do not obtain the 60 votes needed for cloture -- i.e., the filibuster holds -- and the Gorsuch nomination will be defeated.  

Sc4:  The Democrats mount a filibuster, and the Republicans do not obtain the 60 votes needed for cloture -- i.e., the filibuster holds -- but the Republicans then resort to the nuclear option and do away with the filibuster, leading to an up or down vote for Gorsuch, and confirmation.    

Three scenarios lead to confirmation, so the question is whether Sc1 is preferable to Sc2 and Sc4.  It is hard to identify any reason why Sc2 is worse than Sc1.  In both cases, Gorsuch is confirmed; in both cases, the filibuster remains intact.  

Hence, the question for Democrats is whether there is something distinctively worrisome about Sc4.  Put another way, should the Democrats be so fearful of the nuclear option that they simply acquiesce to the unprecedented action of the last Senate to deny a hearing and vote to Judge Garland?  Perhaps there's an argument I am unaware of, but the filibuster-phobia I've seen has been tied either to concern about the electoral consequences on the red-state Democratic Senators, or the worry that if the Republicans trigger the nuclear option, the Democrats will have squandered their most potent weapon.  

The latter concern reminds me of back-country hikers who get lost and die of thirst even though they have water in their camel packs because they are saving it.  At some point, you have to use the resource you have.  There is always a risk you will use it up, and wish later you still had some left, but the opposite risk is just as probable: that you ration and lose the opportunity to use your most effective weapon in the most compelling circumstance.  

It is probably true there are many potential nominees who would prove more anathema to liberals and progressives than Judge Gorsuch.  But that possibility does not justify eschewing Sc4, unless there is a good reason to believe that Sc4 would not be one of the scenarios facing Senate Democrats when that hypothetical future nomination occurs.  If the Republicans decide to blow up the filibuster now, what reason is there to think they would not also decide to blow it up later?  Unless that question can be answered persuasively, the reservation over using the filibuster to oppose Gorsuch turns out to be a reservation over using the filibuster, period.  

I should confess that part of me thinks blowing up the filibuster might not be a bad idea anyway.  It is a profoundly anti-democratic device that massively distorts our political and moral commitment to majoritarianism, and it has been used to do evil as much as to do good.  Besides, Senate majorities are transient things, and a decision by Republicans to blow it up today will one day benefit the Democrats.  The Republicans have been playing the long game for many years, even since before Mitch McConnell announced less than two years into President Obama's first term that the Republicans' top priority was to deny him a second term.  It's long since time for the Democrats to play the same game. 

What it all comes down to is this:  The Republican Party stole a Supreme Court seat that was President Obama's to fill.  A filibuster represents a refusal to acquiesce to that instance of obstructionism.  As a strategic matter, there is no reason not to use it.  And as a moral matter, there is no excuse not to. 

Sunday, February 19, 2017

Calling a Moron a Moron

Last week, when a Fox news poll showed 39% of Americans surveyed believed Trump was doing a good or excellent job, I sent a tweet saying two in five Americans are morons. I'm basically a nobody on Twitter. I don't think I have even a thousand followers. So I was taken by surprise at the vehemence of the reaction to my name-calling tweet -- both from people I know, and from people I don't. An actual friend of mine sent me an email saying insulting people is ineffective, and a friend of a friend on Facebook wrote a post saying people aren't morons just because they disagree with me.

That is certainly true. I spend most my time in Texas and Utah, and a lot of time outside urban areas, so I am well aware how many people disagree with me, including many of my friends. In fact, practically everybody I know disagrees with me about something. So I tried to explain to the friend of a Facebook friend my view of what makes someone a moron. I used newly confirmed EPA head Scott Pruitt as an example. Pruitt is a lawyer who wants to shrink the power of the federal government and let states fill the vacuum. Pruitt, I asserted, is a moron, but it's not because he thinks power should be shifted from the federal government to the states for enforcing laws designed to prevent water pollution -- even though that policy view is idiotic; he's a moron because he claims there is meaningful debate in the scientific community about the significance of global warming.

Those who criticized me for saying two out of five Americans are morons did so for two different reasons. One group of critics said name-calling is ineffective; if you are trying to change someone's mind, calling him or her a moron is not likely to work. Call this the practical criticism.

The other group said "moron" is the wrong word. The people who think Trump is doing a good or excellent jobs may be mistaken, or they may be victims of confirmation bias, or they may be bigots. But they aren't morons. Call this the semantic criticism.

The root of the word moron means foolish. It once meant an adult with the intelligence of a child, and has come to mean someone who is a dolt or ignoramus. Is there a better word to describe someone who denies climate change, or who believes there were thousands of Muslims in Brooklyn celebrating the fall of the twin towers on 9/11, or who insists President Obama was not born in the US, or who thinks there is moral equivalence between the US and Russia? There might be other words that are as accurate, perhaps some of them are less pejorative. But all these propositions are false, and anyone who holds to them is a fool, which is to say, a moron.

Now this leaves the question of whether anything is gained by calling foolish people morons. The fallacy of the practical criticism, however, is that it rests on the delusional premise that people who hold moronic beliefs are persuade-able, if only we could identify a less alienating word. Yet that premise is not only false, it is pernicious, because it leads to a catastrophic political strategy.

What the right wing has proved over the past eight years, if nothing else, is that demonization works. It works in two ways: first, by throwing red meat to the base, it keeps them engaged. From Rush Limbaugh's bilious rants to President Trump's incendiary tweets, the goal is not to persuade, but to energize. People voted for Trump not because they agreed with the specifics of his policies -- the only specific he articulated was the wall, and even that specific lacked specifics when it came to explaining how exactly he would get Mexico to pay for it. They voted for him because they hated or distrusted Hillary, and the hate or distrust was nurtured by constant, incessant demonization.

Second, the great historian Edmund S. Morgan explained how slavery survived and coexisted with a political commitment to freedom and liberty because poor whites saw themselves as more like wealthy slave owners than like poor black slaves. Poor white people viewed themselves as white, rather than poor, and therefore allied themselves politically with people who had no interest in their actual economic well-being. Indeed, the roots of white poverty and its persistence are very much tied to the stubbornly held view that poor whites are more like rich whites than they are like poor blacks or hispanics. Demonizing the enemy is a method of cementing alliances between people who have little else in common other than agreeing on who the "others" are. Republicans recognize this phenomenon and execute it masterfully. There is a hard core of racists in America who didn't care that the Republicans were doing nothing to help them economically, as long as those Republicans kept saying no to President Obama, whom they viewed as illegitimate.

One can point to many reasons Trump defeated Clinton, but not a single one of those factors would have mattered if the Democratic base had showed up on November 8th. The second most important goal in politics is to persuade the people in the middle. But the principal objective is to get the people on your side to vote. You do that by firing them up. That's why Trump holds hangar-filled rallies even as the White House is in chaos -- because cultivating the base is a winning strategy. Being nice, being reasonable, trying to tell people they are mistaken but not fools -- things the Democratic Party has been doing for decades -- is a strategy that elevates decorum over results. Some people would rather play nice and lose. Republicans would rather play dirty and win. Given those options, the Republicans have it right. You want results? Then energize the base. You want to energize the base? Then you don't hold back because you are worried about offending the middle. You speak the truth. You say Bannon is a white nationalist; Miller is a Muslim-hater; Trump might be an anti-Semite and he sure seems to be a racist, and he's without question a dangerous and lying narcissist.

And then you say that if you're ok with people like that running the country, then you're never going to vote for the people I'm voting for anyway. That fact alone doesn't make you a moron. But it does liberate me to tell you that you are when you espouse moronic views.