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Senate Minority Leader Charles Schumer, D-N.Y., speaks to reporters about the struggle to move Supreme Court nominee Neil Gorsuch toward a final up-or-down vote on the Senate floor, at the Capitol in Washington, Tuesday, April 4, 2017.
AP Photo/J. Scott Applewhite
Let me see your filibuster face!
NUCLEAR PROLIFERATION

How the Democrats stopped worrying and learned to love the nuclear option

By Tim Fernholz

These Democrats seem to be built for opposition. And their Republican counterparts have responded by going nuclear.

The question of how the Democrats would face not just the Trump administration but a Congress dominated by Republican lawmakers was an open one after election day shook Democratic assumptions to the core. Now, mere months into the new government, the party of Roosevelt and Obama is offering a surprisingly spiky and vehement opposition that belies its reputation as too liberal to take its own side in an argument.

The latest signal that the party is defining itself in opposition to Trump is the decision by Democratic senators to filibuster the nomination of president Donald Trump’s Supreme Court pick, Neil Gorsuch. Democrats refused to authorize a procedural measure known as cloture that would bring Gorsuch’s nomination up for a final vote today.

The move effectively blocked his nomination. But rather than force Trump to find a nominee who can win over a handful of Democrats, Republicans halted the tradition of requiring 60 votes to end debate over Supreme Court nominees in the Senate. That dramatic alternative, known as the “nuclear option,” is a major shift in senate tradition that lawmakers spent more than a decade spent trying to avoid.

Gorsuch’s nomination, despite the judge’s sterling legal credentials, is not without controversy. He disappointed even moderate senators by refusing to meet with them, bears the increasingly unpopular Trump’s controversial seal of approval, and now faces serious allegations of plagiarism in a recent book. Republican Senators have decided that he is worth upending an American institution. But what’s more surprising is that the Democratic party called their bluff at all.

Getting to No

After Trump’s election, New York senator Chuck Schumer became the de facto head of his party in Washington. A pragmatic politician with a centrist bent, he quickly attracted suspicion from some progressives. His initial read on Trump confirmed their fears: This wasn’t a knock-down, drag out fight, but a search for common ground.

“I think blue-collar America voted for Donald Trump more on Democratic issues than on Republican issues… we will work with him on those issues,” Schumer said in a Nov. 20 appearance on Fox News. He did offer a warning, as well. “Obamacare, he won’t be able to do it. Forget about repealing or modifying Dodd-Frank.”

But this cooperative attitude didn’t last, in part because of angry reprimands from the party’s base, but also because Trump offered little incentive for it, either. Unlike other new presidents who have at least hinted at the possibility of bipartisan cooperation, Trump took a scorched earth approach from the get-go, making his electoral victory and the failures of the Democrats a theme of every public appearance.

By April, the failure of the president to marshal enough votes for his bill repealing Obama’s Affordable Care Act signaled political weakness. This weakness was amplified by ongoing investigations into his and his staff’s connections to Russian intelligence operatives during the election.

Meanwhile, the Democrats chose a new national party chairman, Tom Perez, a former Obama labor secretary. The race for the job could be seen as a re-run of the primary battles between Hillary Clinton and Bernie Sanders, respectively pitting Obamaite Perez against representative Keith Ellison, a favorite of the party’s left wing. Although Perez won, making Ellison his vice-chair, any ideological differences have been easily papered over with talk of the resistance.

Perez has since been touring the country excoriating Republicans, and refusing to apologize for his rhetoric: “I don’t care, because they don’t give a s— about people.”

“I earned capital in this campaign”

In 2017, there are strong echoes of 2005. Then, a re-elected president George W. Bush confronted a diminished and angry Democratic party stinging from the defeat of their nominee, John Kerry. Republicans had control of both houses of Congress, and decided to embark on a haphazard scheme to partially privatize Social Security, the public pension plan for American seniors.

“I earned capital in this campaign, political capital, and now I intend to spend it,” Bush said. And his team, led by consigliere Karl Rove, built a legislative campaign behind a bill that would reward money management firms and shift risk from the commonwealth to individuals. Democrats were appalled, and they vowed to fight it.

At the time, the Democratic party was confronting a self-described problem that won’t surprise contemporary analysts. “There’s not much mystery about the demographic challenge for Democrats,” Mark Schmitt wrote in a 2006 essay assessing this re-think. “It involves non-college-educated whites, and particularly rural and exurban white voters.”

But though the symbol of the party’s new approach was a casting call for rural candidates, like Montana governor Brian Schweitzer, the real shift was tonal. After years in a defensive crouch against a president at the peak of his post-9/11, war-time popularity, Democrats—voters and elected officials alike—were united in outrage. Their base was tired of seeing legislation like the 2003 Bush tax cuts pass with Democratic votes.

Bush’s social security privatization push was dead within months; the more he pushed the bill, the less the public liked it. A priority of Republican donors, it had not been the reason why voters had chosen Bush over Kerry in a campaign dominated by international affairs. Instead, Bush split his own party and united his rivals. His administration’s troubled response to Hurricane Katrina at the end of the summer essentially put an end to his second-term legislative agenda.

This political battle elevated online activists known as the netroots, who had coalesced around Howard Dean’s progressive presidential primary campaign the year before, giving a voice and urgency to the party’s supporters on the ground. That mobilized anger would combine with a hard-charging political operation led by then-representative Rahm Emanuel to help return the House to Democratic control.

Running out of nukes

Even in 2006, however, Democrats weren’t fully united in opposition to Bush’s agenda.

One initial goal for the party was to block ten conservative judicial nominees proposed by Bush. Then as now, their minority in the senate used the power of the filibuster to prevent the nominees from coming up for a vote. Then as now, Republicans in control of the chamber threatened to end the filibuster by invoking “the nuclear option.”

This time around, 14 senators, seven from each party, came together to make an agreement: They would allow three of the nominees to the floor, while the others would stand on their own or be pulled. In return, the Republicans would not remove the filibuster. This compromise set the stage for the confirmation of Samuel Alito, a Bush nominee, to the Supreme Court.

But it would not solve the filibuster problem. The use—and abuse—of this strategy by the minority party to block the president’s party has only increased in recent years. And it only intensified after the election of president Barack Obama, when senate Republican leader Mitch McConnell made opposition his primary goal, and used the filibuster to delay regular business.

Then-senate majority leader Harry Reid had an answer for this obstructionism: In 2011, he invoked a nuclear option of his own, ending the normal practice of allowing virtually unlimited minority amendments to legislation moving on the floor. At the time, Schumer opposed the decision, but it helped unstuck the chamber, at least a little. Meanwhile filibusters on other legislation and nominations remained unchecked.

Eventually, in 2014, Reid would move to eliminate the filibuster for all nominees except those for the Supreme Court. When Republicans regained control of the chamber in 2015, they kept Reid’s changes in place, making it tougher for Democrats to block Trump’s cabinet.

Despite that development, it has not been a challenge to convince Democrats to filibuster Gorusch’s nomination. The main breaks with the caucus are coming from senators Heidi Heitkamp, Joe Donnelly, and Joe Manchin, all representing states where Trump won the presidential election by a large margin.

Keep it simple

For all the talk of hypocrisy as each party changes its stance on the filibuster with the changing of their political interests, few can deny that opposition is a recipe for political success. Democrats rode it to control of Congress in 2006 and 2008, and Republicans returned the favor in 2010 and 2012. The path toward a confrontation over the mechanism has never been clearer.

This, however, is a historically unpopular administration, making it even easier for the Democrats to say “no.” Indeed, many in the party’s base have already convinced themselves the filibuster should be eliminated, after seeing it used to hinder Obama. They didn’t notice Republicans paying much of an electoral price for blocking president Obama’s Supreme Court nominee Merrick Garland. Concerns that forcing a confrontation now will make it easier for Trump to put a more radical justice on the court later don’t appear to have much sway.

The sorts of Democrats who in 2005 might have eagerly sought a bipartisan deal to defuse the situation—those facing re-election in states with mixed electorates like Pennsylvania, Florida, and Virginia—seem less worried voter backlash this time around, even if that meant calling the Republican party’s bluff to go nuclear. It’s a changed party: All seven Democrats who had been members of the 2005 “Gang of 14” are no longer in office.

Like Bush in 2005, Trump is not focusing on the elements of his campaign that motivated his voters—the blustery nationalism and pledges of government services—but rather on those that satisfy the ideologues within his administration. While Gorsuch may truly represent the model of a modern, ultraconservative legal scholar, the clouds of foreign intrigue and conflict of interest around the Trump administration are beginning to obscure whatever virtues he may boast.

And that may prove to be the simplest reason why Democratic lawmakers, are calling the Republican bluff: Donald Trump has made it just too easy to say “no.”

This story was updated following today’s votes in the Senate.

Tim Fernholz
Reporter
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