NRO: Goodbye to the Judicial Filibuster

I already weighed in on the strategic folly of Schumer’s Gorsuch gambit last week at POLITICO Magazine, but I decided it was worth a meditation on the sheer disingenuousness of it all over at National Review.

Neither party has a monopoly on bad faith, but the advantage of McConnell’s gambit was its simplicity. The election-year-vacancy rule, however contrived, lent itself to relentless message discipline. Republicans took great care not to indulge a debate on the process of the nomination, much less the merits of the nominee. It’s here where Schumer’s approach fails: Democrats are lodging an ideological complaint, wrapped in an appeal to principle, inside a procedural red herring.

Schumer’s muddled pretext has flushed his members down an agonizing logical cul de sac. Take Claire McCaskill, emerging from a self-proclaimed “vortex” to announce that she would join a filibuster, despite being up for reelection in 2018 in a state that went for Donald Trump by 19 points less than six months ago. Consider the tortured lede of her piece at

This is a really difficult decision for me. I am not comfortable with either choice. While I have come to the conclusion that I can’t support Neil Gorsuch for the Supreme Court — and will vote no on the procedural vote and his confirmation — I remain very worried about our polarized politics and what the future will bring, since I’m certain we will have a Senate rule change that will usher in more extreme judges in the future.

While you wouldn’t know it from Schumer’s dodgy rhetoric, or from McCaskill’s em-dash aside, these outcomes are not mutually exclusive. Indeed, it is precisely Senator McCaskill’s opposition on the procedural vote that will probably precipitate the rule change she professes to fear.

Full piece here.

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POLITICO Mag: Schrödinger’s Filibuster

My latest piece in POLITICO Magazine on the Gorsuch, the filibuster, and mutually assured obstruction.

But saying Republicans have the political will to put Gorsuch on the court is different than saying there are 50 GOP senators who are otherwise prepared to end the filibuster. Their appetite is entirely a function of circumstance. Were Democrats to lay off Gorsuch, keeping their powder dry for the future and maintaining the moral high ground, it would be rather easy to imagine the Susan Collinses, John McCains and Lindsey Grahams of the world getting cold feet with a lesser Trump pick, particularly one who shifts the balance of the court rather than maintaining it. Which is to say that Gorsuch’s nomination is something of a perfect storm for GOP procedural fortitude. Only seeing such a model jurist held hostage to cynical political whims would be enough to compel the righteous indignation necessary to go nuclear. (I’ll pause here so my friends on the left can let out a primal scream for poor Merrick Garland.)

The cloture rule now faces an existential paradox. Call it Schrödinger’s Filibuster. Assuming Schumer can hold the line within his caucus—and he has seven votes to give—the 60 vote threshold for Supreme Court nominations is dead. Do the right thing and it lives to see another day.

Full piece here.

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Nobody Knew Legislating Could Be So Complicated

Contra WH spin, it doesn’t get any easier from here. And before Republicans get to find out tax reform is just as complicated as health care, they have to somehow avert a shutdown:

Of course the rub is that before Republicans can even begin to consider the FY2018 budget resolution that would provide a priviledged vehicle for tax cuts, they have to deal with a number of more pedestrian issues, chiefly funding the government. Not in some fantasy, just-on-paper policy document like Trump’s “skinny” budget — they actually have to find the formula (and the votes) to keep the lights on. And unlike the past six years where Democrats had at least some ownership of the federal government, and therefore an incentive to provide the lift, they’ll be far more inclined to let Trump and his party twist in the political wind.

While both health care and tax reform had obvious political upsides, there’s no back patting from outside groups for doing the basic blocking and tackling of government. Where reconciliation bills and Congressional Review Act resolutions allow for party line victories, albeit with restrictions, the appropriations process requires at least some Democratic buy-in in the upper chamber. How will Trump respond when his wall funding is a non-starter? How will the Freedom Caucus react if the President asks them to bite the bullet on a clean CR or debt limit increase?

Full post here.

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