In order to elevate Neil Gorsuch to the Supreme Court, the Senate discarded its hoary practice of filibuster.
That’s two wins for our constitutional republic.
Memory does not summon up an instance where the filibuster produced something to be proud of. It’s a die-hard obstructionist device, a legislative monkey wrench in the hands of a disgruntled minority-of-one. Even for the Senate – “undemocratic” by constitutional design, each state having two senators regardless of population – the filibuster was extreme, attempting to confer on any one of them a veto power.
It attained its apogee when blocking civil rights legislation through the 1950s into the ‘60s, requiring Lyndon Johnson’s mastery of cajolery, horse-trading, and dissembling to break through. Then it was the Southern Democrats, calcified by seniority into their chairmanships, Russell, Stennis, Eastland, Thurmond.
In this tradition, quite ironically and rather hypocritically, stand now the Trump-era Senate Democrats- Chuck Schumer their leader. Plainly, they have scant philosophical common ground with their filibustering forebears.
What they do have in common is an overbearing conceit that their moral compass alone points in a righteous direction and a unhealed resentment over having lost an election.
Schumer’s argument that “mainstream” requires 60 senators’ votes is meretricious. Kagan and Sotomayor were both propelled to the Supreme Court by the 2008-09 Senate’s 57 Democrats, plus independents Bernie Sanders and Joe Lieberman who caucused with them. It’s hardly assured that either could obtain 60 votes in today’s Senate, with only 46 Democrats (+2 independents) outvoted by a 52 Republican Senator majority, and even less so that Merrick Garland could have in the 54-46 Republican Senate of 2016. Schumer’s argument is not about reaching genuine consensus, but a minority’s demanding the majority’s surrender.
President Obama promised to nominate judges for their “heart, the empathy, to recognize what it’s like to be a teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old.” Sotomayor fit that mold.
Neil Gorsuch comes from a different one. He looks to the law, as it’s written. His decision will, by necessity, favor one side of a case or the other, where the law and the particular facts of the case lead him, which will not always, or even presumptively, be the “heart” or “empathy” side.
If the Democrats’ method of selecting of judges for their personal, sociological, extra-judicial predilections, was “mainstream” then, the stream has changed course now – over which the Democrats’ grieve.
But they no longer have the filibuster in hand to obstruct that flow, which deserves no grief.
Ron Litchman is Chair of The Manhattan Libertarian Party. ManhattanLP.org. He expresses his own views, not necessarily those of the Manhattan, New York State or National Libertarian Party, nor of any other individual.