A friend, a fellow blogger, and a first-rate thinker, responded to my piece urging Senator Claire McCaskill to filibuster the Gorsuch confirmation. Here is, in full, what Jim Wheeler wrote:
I understand your passion on this, Duane, and your outrage over the Garland nomination. I share your feelings. But, I’m having some doubts about your strategy here. It seems to me that uniform party opposition on Gorsuch and other issues will only harden and extend political enmity. Given his penchant for petty revenge, I would expect that even if Tr-mp is forced to withdraw Gorsuch, his next nominee will be worse, not better.
Also, I think forcing the nuclear option for SCOTUS nominees would be bad for the country in the long run. It would only solidify the partisan divide. The Republic is designed to function on compromise, so for Democrats to abandon that, even if the other side has done so, is a big deal. I think Harry Reid screwed up by invoking it for cabinet positions.
Here is my reply:
Once again, Jim, I always have to take a step back and reevaluate my position when we disagree about something like this. Needless to say, it took me a long time to come to the position I did. I read all I could about the counter-strategies, the relatively unattractive options Democrats have in this situation. I thought a lot about the ramifications, too, both if we do what you advocate and if we do what I advocate. Those ramifications, as we both know, cannot be known until one action or the other is taken. So, both of us are merely speculating about a future situation. Keeping that in mind, allow me to indicate where I disagree with you and why:
1) I strongly disagree with your take on what Harry Reid did with the filibuster in 2013 when he was Majority Leader. His action wasn’t primarily done because of cabinet position vacancies. It had to do with the courts. The alternative to what Reid did would have been, essentially, to allow Republicans to control who could and couldn’t hold federal judgeships, including on the all-important U.S. Courts of Appeals. Republicans were slow-walking judicial appointments (sort of a preview of the more aggressive move involving Merrick Garland). They took obstruction to levels never seen before. And there were no signs they would relent.
If Reid had not done something, many of the judges that are in the federal system, appointed by Obama, would not be in the system. That they are there is a legacy that will help us fight Tr-mpism, as things go forward (I expect, for instance, the Justice Department’s move against sanctuary cities will be tangled up in the courts for years; we may see the value of Obama/Reid appointees here and elsewhere). The bottom line is that Democrats either had to tolerate the intolerable, or fight back. If 70,000 votes or so had changed last November, we wouldn’t be worrying about any of this. Reid had no way of knowing how dumb or uninformed or misinformed a handful of crucial voters would be three years later, especially given what those voters should have seen in Tr-mp. At least, as far as the federal courts go, we have some way to fight back and possibly mitigate some of the damage coming.
2) I disagree with your assumption that, if Gorsuch is withdrawn, the next choice would be worse. There would be no point, as far as McConnell is concerned, to keep the filibuster only to go through this whole thing again. He would be hanged from the highest tree. If he decides to keep the filibuster alive, then Gorsuch will not be confirmed—if Dems stick to their guns. And McConnell would then have to insist that the next nominee be somewhat to the left of a man, Gorsuch, who, by many accounts, is more conservative than Scalia on many issues. That would be a victory, albeit a small one.
3) Let’s think through what you said: “I think forcing the nuclear option for SCOTUS nominees would be bad for the country in the long run. It would only solidify the partisan divide.” There are two things here I want to confront. One I’ll put in the form of a question: What good does it do, given that Tr-mp’s list of future appointees are all right-wing judges, to keep the filibuster in place for extremist nominees (Gorsuch is one of those, for sure), if McConnell can always threaten to go nuclear should Democrats attempt to use a future filibuster against those future extremist nominees? The only way the filibuster can work is if there is a threat to use it. If McConnell can always count on Dems not to ultimately use it, for fear he will do away with it, then he has the best of both worlds and Democrats have the worst. He doesn’t have to take the heat for doing away with the filibuster because Democrats, de facto, would be doing away with it by fearing to use it.
On the other point you made about solidifying the partisan divide, I’m afraid the divide is much too solid to ever melt at this point. In 1987, Reagan’s FCC chairman did away with the Fairness Doctrine, which required broadcasters to present political issues in a balanced way, to present a diversity of views. The end of that policy paved the way for Rush Limbaugh, who paved the way for Fox “News,” who paved the way for Matt Drudge/Andrew Breitbart, all of which, you guessed it, made Tr-mpism possible. I am convinced, since I was a rabid conservative at the time, that Limbaugh and right-wing talk radio made the destructive Gingrich revolution possible in 1994, a very calculated reaction to the much-hated, much-vilified Bill Clinton. Gingrich, and a small group of conservative radicals, effectively nationalized that election in 1994. And it was a triumphant Gingrich, who would become Speaker of the House, who essentially created the extreme partisan divide in Congress of which you speak.
I was deep into studying politics at that time and I cheered for such division. I was part of the problem. I was, as I have said, radicalized by Limbaugh and, if you can believe it, by Gingrich. I wrote a paper in college, I think it was 1984, lauding Gingrich as an up-and-coming leader who would soon rise to power in Congress. He had organized young and unknown radical right-wingers in 1983 by creating an organization called the Conservative Opportunity Society (COS). Read what Vin Weber, a congressman at the time and second founding member, later said about why they organized themselves:
It’s important in a second way to understand that part of Gingrich’s strategy, and all of our strategy, was to understand that while we created a faction within the Congress, we could multiply its strength beyond its numbers if we also did something outside of the Congress to create a faction, if you will, in the country.
It is vitally important to understand this strategy. It was not only to divide the Congress, but the country. That was the heart of the strategy. To divide and conquer. That’s the same strategy employed by right-wing radio hosts, by Fox “News,” by Breitbart. In Gingrich’s case, he effectively used his COS to network with other conservative activist groups and gain strength for the movement he was creating. Inside the House, his COS members very effectively used C-SPAN, which, according to Weber, had an audience of political junkies that numbered in the hundreds of thousands. After legislative business was done for the day, these radicals spoke before an empty chamber, all of which C-SPAN was committed to broadcasting. Here’s what Weber said about how that worked:
We found out, real quickly, that they were out there. Wherever Bob [Walker] or I or Newt or Duncan Hunter went, we shortly found out that there were all sorts of C Span junkies, if you will, that watched us, that identified with COS, that paid attention to what we were saying, and that were ready to contact their Congress people. We found a lot of the senior members who were not part of COS, maybe some who were quite hostile to see us, would find themselves going home, speaking to a Republican audience and afterwards, a number of their own constituents and supporters would come up and say, ‘Isn’t it great what those guys on COS are doing. I hope you’re helping out Newt and Vin and Bob.’ So the reach of C Span was tremendously important in that way.
Weber explained how Tip O’Neill, Democratic Speaker at the time, missed the point of what Gingrich and his radical followers were doing. O’Neill couldn’t figure out why they would want to spend so much time speaking to an empty chamber. But they were speaking to those C-SPAN cameras, to those thousands and thousands of potential converts who were watching. “It was just an ongoing set of communications that we were aiming at the American people,” Weber said. (This is in effect what Tr-mp’s Twitter account does today.) Then came the ’94 election and the infamous Contract with America. Weber said,
Nationalizing the election was always part of the strategy, taking the issues directly to the country, getting outside of the committee rooms and getting outside of the Congress was always part of the strategy.
One forgets how radical a notion that was. Presidential elections are, technically, the only “national” elections we have. We all vote for president and only a handful of us vote for our particular representative in the House. So, how did these radical House Republicans manage to nationalize a non-presidential election? Weber explained:
In terms of the strategy that we employed, I think one of the most helpful things to think about is that he had a construct and we really developed it. We needed to develop as a party – wedge issues and magnet issues. It’s a fairly simple notion with wedge issues, or ideas that really separated the Democratic majority from the public, issues where they were plainly wrong and the public did not support them. But they were, for a variety of reasons, not paying a political price. In those cases our assignment was to find ways of making clear the differences between the Democratic Party and the public on those issues driving a wedge between the Democrats and their constituencies.
They were successful. Wedge politics worked. They had their Contract with America. They demagogued Clinton’s healthcare reform efforts. They argued for a Balanced Budget Amendment. They argued for a voluntary School Prayer Amendment. They used such issues to drive that Gingrich “wedge between the Democrats and their constituencies.” And that 1994 election proved to be a disaster for Democrats. Republicans took over the House, with a 54-seat swing, the largest gain since 1946. In the Senate, the GOP gained eight seats, and the day after the election, one Democratic senator switched parties. The country hasn’t been the same since. Essentially, all congressional elections have been nationalized. We especially saw that happen in the 2010 congressional election, perhaps the most consequential election of them all. That 2010 election featured Gingrich-style politics on steroids. It was the election that led us directly to Tr-mpism, to what we see today. And it’s no accident that Gingrich has mostly been a Tr-mp cheerleader.
This all leads me back to your original statement, Jim:
I think forcing the nuclear option for SCOTUS nominees would be bad for the country in the long run. It would only solidify the partisan divide. The Republic is designed to function on compromise, so for Democrats to abandon that, even if the other side has done so, is a big deal.
You couldn’t be more right that our country was “designed to function on compromise.” But there has to be two parties to compromise, both sides making concessions. One party can’t surrender and call that compromise. As far as I’m concerned, being afraid to act boldly at this moment, afraid of the nuclear option on SCOTUS nominees, represents surrender, not compromise. The partisan divide is here to stay. In fact, it is going to get worse, now that our information stream has been irreparably polluted and facts are no longer things we can count on even hard-core partisans on one side to share with hard-core partisans on the other. We can’t go back. All that is left is to fight like hell to get back control of the Congress by doing what Gingrich did so long ago: drive wedges between the various constituencies in the Republican Party (we saw a glimpse of this during the failed effort to repeal Obamacare; and we will see more in the fight over tax reform). And while our Democratic leaders are conducting that wedge-issue warfare, they have to show our solid base of voters, those who are sympathetic to our vision of what government should be, that they are willing to fight for that vision, fight for essential principles, fight for fairness, and fight the vulgar Tr-mpism that is corrupting, perhaps beyond repair, the country.
For me at least, this Gorsuch confirmation vote will either send a signal that our leaders are in this fight to win it, to try to mitigate the disaster of Tr-mpism, or are in it not to lose their next election. I remind you that the infamous Gingrich revolution began because Gingrich resented the mindset of defeatist Republicans who didn’t think they would ever be in the majority and were content with that reality (Rush Limbaugh would echo this idea almost daily on his radio show). Again, listen to what Weber said:
I guess the most important thing that I remember from my early conversations with Newt is that he believed that we could be in the majority. He also understood that the major impediment to becoming a majority was our own mind-set, the minority party mind set, as we put it. It was the sense that we couldn’t become a majority and since probably a majority of the members in the Republican Party believed that, even if they didn’t articulate it, it drove them to behave in ways that hurt the Republicans.
So it became a self-fulfilling prophecy. Because we’re in the minority, we act a certain way that assures that we’re going to stay in the minority. That’s the first thing I really remembered Newt saying.
Before their triumph in 1994, Gingrich and his radical followers had many setbacks. But they persevered. The didn’t give up. And their efforts eventually changed American politics. I happen to think Newt Gingrich and Rush Limbaugh and Sean Hannity and Fox “News” and Breitbart represent negative forces not only in our politics, but in our society at large. But those forces are here to stay. We cannot defeat them once and for all. We can only hope to manage them, to keep them from doing lasting harm to people and the institutions vital to our survival as a functioning democracy. And we cannot do that by standing by and waiting for a sunnier day. There won’t be a sunnier day. We are in the gloom of a long winter and we either build a fire of our own to keep our political vision alive, to keep our voters warm and ready to fight, to let the other side know that fight is coming, or we surrender to the cold and ultimately deadly reality of Tr-mpism, either the form we see today or something worse in the future.
At the risk of sounding melodramatic, that’s what I have concluded is at stake here, my friend.