Tag Archives: US Senate

What He Knew and When He Knew It

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Charles Pierce of Esquire points out a big difference between the Watergate scandal and the attempted coup that led to January 6th:

As it happens, Tuesday was a kind of anniversary. On June 28, 1973, Senator Howard Baker, Jr. (R-Tenn) of the Senate Select Committee On Presidential Campaign Practices —the Watergate committee — began his questioning of former White House counsel John Dean, who had spent several days laying out with bloodless precision what would become known as “the White House horrors”. Baker asked the question that made him famous.

The central question at this point is simply put: What did the President know and when did he know it?

Nobody asked Cassidy Hutchinson that question. It was moot. The answer, as she spent Tuesday telling the committee, was “Everything” and “Immediately”.

“I’m Not Letting Anybody in the Senate Steal My Joy”

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Today, Senator Cory Booker, Democrat of New Jersey, spoke in support of Judge Ketanji Brown Jackson’s nomination to the Supreme Court. He spoke for 20 minutes instead of asking her questions. Booker offered a powerfully emotional corrective to what’s been described as a “disgraceful” process, one in which a few Republican senators tried to outdo each other’s disrespectful, demagogic performances. Judge Jackson will be the first black woman to sit on the Supreme Court. Senator Booker made America seem better than it often is.

The senator devotes the first 10 minutes or so debunking ludicrous Republican attacks. If you don’t have 20 minutes to spare, jump 10 minutes in to watch the portion of his remarks that impressed so many today and should be remembered for years to come.

In another Washington building, the right-wing majority on the Supreme Court continued to side with Republicans whenever there’s a voting rights case, not only siding with them, but interjecting themselves when they don’t need to. When Judge Jackson is Justice Jackson, maybe she can convince one or two of her Republican colleagues to occasionally act like judges instead of right-wing hacks.

In other news, one of the Court’s worst members, Justice Clarence Thomas, has been in the hospital with an unnamed infection. It’s too much to ask, but may he soon rest in peace. The Court would then have four Republican crazies instead of five. That would allow the somewhat less corrupt Republican who’s Chief Justice to sometimes stop his radical colleagues from doing their worst.

It’s Only the Supreme Court. Take Your Time!

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Justice Stephen Breyer announcing his retirement later this year prompted Alexandra Petri, the Washington Post’s humor columnist, to comment. But the situation ain’t funny: 

Some things are urgent, such as, for instance, filling a Supreme Court vacancy. Other things are not urgent, such as, for instance, filling a Supreme Court vacancy. Sometimes it is a little hard to know which one it is. It depends on whom you ask — Sen. Mitch McConnell in 2016, or Sen. Mitch McConnell in 2020.

Now, Justice Stephen G. Breyer has retired (thanks for reading, Justice Breyer!), and it is time to locate a new jurist who will be willing to sit around for the next several decades writing withering dissents and waiting for her colleagues to die. And being warmly collegial, of course! It sounds depressing when you put it like that, but that is how the Founding Fathers designed it.

We had better proceed at a speed of some sort! Yes, now is either the time to grind to a halt, or to move forward with blazing rapidity from nomination to confirmation in 30 days . . .

Of course, the president presides over a Senate majority that could evaporate at any moment, which sounds urgent! But that president is a Democrat, so, a wash.

Sure, we have been rushed before. “I felt that the timetable for the last nominee was too compressed,” said Sen. Susan Collins (R-Maine). After all, Amy Coney Barrett was confirmed in such a short period of time that a Texan who became pregnant at the beginning of the process would still have been allowed to get an abortion when it ended . . .

“This time,” Collins continued, “there is no need for any rush. We can take our time, have hearings, go through the process. It is a lifetime appointment, after all.” So true! Now is the time to really sit and deliberate. The past two nominees were, only in the strictest and most literal sense, the deciding votes that could overturn Roe v. Wade; this nominee will be the one who has to sit there collegially dissenting after it happens, a role that requires a great deal more scrutiny.

We have hurried into this sort of thing before, and we can see how that turned out. (Please shout “Well!” or “Badly!” after a count of three so that we can see how apolitical a body the court currently is!) Now is no time to be hasty. The time to be hasty was earlier, after the failure of the Merrick Garland nomination to get a hearing but before the nomination of whoever this will be, when we were ramming new justices into forever appointments at astounding speeds and having the time of our lives.

Now, we should take our sweet time. We should get out our big reading glasses and a huge stack of books and proceed with enormous care. No rush! It’s fine! Nothing can go wrong. The Senate appears very functional. President Biden is in office, with a wafer-thick zero seats to spare! We have world enough and time at last, and we can finally do all the detailed, lengthy vetting that we have been meaning to do all this time but couldn’t, for some reason.

There’s no excuse to cut corners now. This time, the FBI might even have the leisure to follow up on the tips it receives.

A Silver Lining, Perhaps

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The arguments Democratic senators made last night to reform the filibuster, e.g. by returning to the “talking” filibuster that can delay legislation as long as the minority keeps arguing against it, meaning that a bill can’t be stopped in its tracks by email, were so good that the refusal of two “Democratic” senators to vote for reform is either the result of stupidity or base motives.

If they truly believe the filibuster fosters bipartisan solutions, they are stupid. If they think the country will be better off with Republicans having total electoral control in various states, possibly resulting in the return of the worst president in history — whether he wins or not — they are horrible people. (We shouldn’t rule out the likelihood that they’re both stupid and horrible.)

Anyway, Paul Waldman of The Washington Posts looks on the bright side:

For years, Democrats have been waiting for Republicans to have their “epiphany,” to realize that scorched-earth politics and implacable opposition to anything a Democratic president might suggest are not good for the country. The epiphany has arrived — but it’s the Democrats who have finally come to understand reality, and are prepared to act accordingly.

This might seem like a moment of Democratic defeat [it sure as hell does]. But it could be a turning point, one that leads to more progress in the future.

At his Wednesday news conference, President Biden was asked whether he had over-promised and what he planned to change in the remainder of his term. In response, he said, “I did not anticipate that there’d be such a stalwart effort to make sure that the most important thing was that President Biden didn’t get anything done.”

Lots of people anticipated it — it has been a topic of debate for years, and Biden took a lot of criticism in the 2020 campaign from those who thought his claim that he could persuade Republicans to work with him was disingenuous or naive. Every reasonable observer knew that [Republicans] would approach his presidency with the same strategy it used with Barack Obama: Oppose almost everything the president proposes, and do everything in the party’s power to make him fail.

But what matters at the moment isn’t whether Biden ever believed [Republicans] would act differently. It’s that he seems ready to stop pretending that a dawn of bipartisan cooperation is about to break.

Now consider what happened that night, when Democratic Sens. Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.) joined with every Republican to shoot down a rules change that would have allowed two voting rights bills — bills Manchin and Sinema claim to support — to receive an up-or-down vote.

It was absolutely a defeat, for Biden, for his party, and most of all for voters. But it also represented a significant shift within the Democratic Party. That’s because every single Democrat apart from Manchin and Sinema supported setting aside the filibuster.

A variety of factors led them there. The obstructionism and radicalism of today’s [Republican Party] certainly played a part. Perhaps just as important, we’ve had our first real, detailed debate about the filibuster, and all the arguments in its defense were revealed to be so preposterous that it has become almost impossible for any honest person to oppose reforming it.

As Sen. Amy Klobuchar (D-Minn.), a more moderate Democrat, explained in a passionate plea, the Senate has adjusted filibuster rules to allow majority votes more than 160 times, including for such pressing matters as “approving compensation plans for commercial space accidents.”

So with two exceptions, every member of the Democratic caucus, from progressives such as Bernie Sanders (I-Vt.) and Elizabeth Warren (Mass.) to moderates such as Jon Tester (Mont.) and Angus King (I-Maine), agreed that the filibuster has to change here as well.

There was nothing like that kind of unanimity even a year ago. That glass is now 48/50ths full.

And the defeat of these voting rights bills, which is extremely painful for both Democratic legislators and their party’s base, might actually hasten the filibuster’s demise.

As I’ve noted, in every state where Democrats have a chance to take a Republican Senate seat, all Democratic primary candidates favor scrapping the filibuster. That includes both moderates and progressives. Though there are many things that divide, for instance, Rep. Conor Lamb and Lt. Gov. John Fetterman in Pennsylvania, they agree the filibuster should go.

Democrats, including the president who has spent so much time insisting that he can achieve bipartisanship, are simply done waiting for Republicans to see the light. The next step is for them to get mad enough to do something about it.

Which might happen. Even though the most likely outcome in 2022 is a Republican sweep (following the usual midterm election pattern), Democratic voters can and should be angry enough about the death of these voting bills — among many other things, including the Supreme Court’s likely overturning of Roe v. Wade this year — to organize, register and overcome Republican voter suppression to get to the polls in November.

If you’re a Democrat and you’re mad at Manchin and Sinema — and you should be — the answer is to make them irrelevant by electing a few more Democrats to the Senate.

Besides, they’ll probably be around for only a few more years. Manchin might not run for reelection in 2024, and if he does, he’ll probably lose, as long as Republicans find a halfway decent candidate in deep-red West Virginia. And after this, Sinema couldn’t win a Democratic primary for dogcatcher; if she runs again the same year, she’ll face a strong primary challenge [the latest poll shows she has an 8% — eight percent — approval rate among Arizona Democrats].

So it’s not hard to imagine the Senate considering voting rights again in the near future — and this time, there will be 50 votes to pass it.

Thanks to Manchin and Sinema, and to Republicans who remain just what they’ve been all along, Democrats can no longer afford to delude themselves about how politics works today. And for a change, they all know it.

The Best Argument Against the Filibuster: It’s Unconstitutional!

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There’s a rumor that Krysten Sinema (“Dem” – AZ) thinks her career — including being elected to the Senate — has been so impressive that her logical next step is to run for president. That’s why she doesn’t care that protecting the filibuster is killing the Democratic agenda and that, as a result, Democrats in Arizona hate her. She’s planning to run for president in 2024 under the banner of “bipartisanship”. It’s a ludicrous idea, but her big money donors are willing to fuel her fantasies. 

Filibuster reform may be dead for now but Thomas Geoghagen explains why the filibuster is  unconstitutional. From The New Republic: 

Over the course of many years and many think pieces, the case against the filibuster has been laid out. Typically, critics of the Jim Crow relic invoke various historical facts (some of which have apparently been lost on, or willfully ignored by, certain critical members of the Senate), as well as an array of practical and prudential bases. Onto the pile, however fruitlessly, let us add another: The filibuster is a plot against Vice President Kamala Harris—to take away her constitutional right to vote.

Article I, Section 3 of the Constitution makes it plain: Harris, as chair of the Senate, is given the responsibility to vote “when the Senate is equally divided.” In all the furor over the filibuster blocking voting rights legislation, keep in mind it is blocking Harris from this constitutional right, as well. The supermajority rule that ran counter to the Founders’ desires, now upheld by the filibuster’s status quo, is not just aiding in the disenfranchisement of voters by blocking meaningful voting rights legislation from passage—it’s also disenfranchising the woman sent to Washington to resolve the disputes of a divided Senate.

It would be fitting if Harris, given the chance to gavel the filibuster out of existence to pass the Freedom to Vote Act, reclaimed her rights at the same time. She can put that to the Senate on January 17 when any rules changes are being considered—by starting with a declaration that the filibuster is not just unfair or undemocratic but unconstitutional, as well.

The filibuster is not just a technical violation of Article I—though it is precisely that—it’s also a repudiation of its original design. That design created a bicameral legislature, with each house operating by majority rule, to replace the single legislative chamber that operated under the Articles of Confederation by supermajority or unanimous consent. By sneaking in a supermajority rule on the sly, as a procedural rule of debate, the Senate has essentially brought back a form of the obsolete Articles of Confederation. It shouldn’t really come as any surprise that the republic now faces a similar impetus toward disunion to the one it faced when the Articles were in place. The plot against Kamala Harris is not just a plot against the Constitution—it’s a force that threatens the existence of the United States itself.

It is without doubt a fact that the Framers wanted a deliberative legislative body. That’s why they divided the Congress into two houses—to provide a vital check and balance. Supermajority rule in the Senate upends the Framers’ intentions: It places too great a check on the House—without the House’s consent. More specifically, it inflicts an institutional injury on the House, as the “active principle of government” that the House is unable to redress. This is exactly what worried James Madison, Alexander Hamilton, and others who bitterly criticized supermajority rules.

Yes, as defenders of the filibuster point out, the Senate has a right to make rules as to its own proceedings, but trifling with majority rule crosses textual red lines. Beyond the aforementioned Vice President Voting Clause in Article 1, Section 3, there is also the “Presentment Clause” of Article I, Section 7, which says in two places—yes, twice—that any bill or resolution passed by the House and Senate, “shall, before it becomes law, be presented to the President,” and if sent back, then it must be “approved by two thirds of each House.” The Presentment Clause would make no sense if the Senate required more than a majority to send it to the president in the first place. Finally, there is the Enumeration of Super Majority Rules, the seven times in the text of the Constitution that specifically lay out where and when a supermajority is expressly required.

One might nevertheless ask, why not by majority rule permit Congress [to institute] rule by supermajority? Of course this is an academic question—for Congress, by vote of both Houses, has never adopted a supermajority rule. The filibuster is simply a rule of the Senate, which has the effect of limiting the ability of the Congress to act. But Congress itself has never approved it. Yes, there has long been a cloture rule for the so-called “talking” filibuster. In 1917, the Senate adopted such a rule, which then required a two-thirds vote—now reduced to three-fifths. And while this rule did have a disgraceful and pernicious effect in race-related matters, the talking filibuster of old only on rare occasions held up a majority vote, maybe once or twice a year or not at all. But in our time, the talking filibuster for which the rule was intended is gone; no one has to talk to block a bill. And what was a procedural rule to get to a vote faster is now a rule that stops a vote from happening at all.

No, Congress has not adopted and never would adopt such a rule. Why would the House consent? As it now exists, it lets the Senate place a much greater check on legislation passed by the House than the Framers ever intended. It’s bad enough that this upsets the balance of power between the Senate and House, but it also upends the balance of power between the federal government and the states. The Senate, representing the states, is blocking the House, representing the people.

For the sake of argument, let us assume the text of the Constitution is less explicit than it actually is. Allowing Rule 22, which bars a vote by the majority without even active debate, still violates two fundamental canons of constitutional interpretation. The first canon, or rule, is the expressio unius principle—listing the exceptions for supermajority implies the exclusion of all others. That principle is basic in constitutional interpretation. In the case of Powell v. McCormack, the Supreme Court barred the U.S. House from excluding Adam Clayton Powell as a member because of “unethical conduct.” That was not one of the bases listed in the Constitution, and the listing of those bases implied the exclusion of others.

Additionally, to allow the Senate to add a supermajority rule would violate a second canon, the so-called Federalism Canon—which calls for the balance between federal and state power to be left alone. The filibuster changes the relative balance of power between the Senate, representing the states, and the House, representing the people. It is no accident that in blocking voting rights legislation, it is being used to protect the states from being regulated.

Harris, as chair, could reach the same conclusions. Rather than just hope a Senate majority uses the “nuclear option” to rid us of the filibuster, she could press the button. For the reasons above, she could declare the supermajority for cloture to be in conflict with Article I.

She may fail in the attempt. A majority can overturn a ruling of the chair. It is not so easy even for some Democrats in the Senate to give up the filibuster. There are many, many other bills that the senators take up other than voting rights legislation. So individual senators are caught in a dilemma worthy of a class in game theory—though glad to remove it for A, they do not want to remove it for B, or maybe C, or maybe D, or maybe an unknown X that will arrive later in their six-year terms. So the filibuster remains in place forever—except now for the budget and for nominations to judgeships and political positions. In these two cases, the budget and nominations, there is no choice but to get rid of the filibuster or there would be institutional collapse of the courts and of the executive branch.

However, with the John Lewis Act and Freedom to Vote Act, we are speaking about the institutional collapse of democracy itself. Protecting the integrity of federal elections from state interference is necessary to the integrity of the federal government—it is an obligation that is set forth in the original Elections Clause, Article I, Section 4. It is the only clause, the only text, that says Congress can override any state regulation of a federal election. Ever since 1787, Article I, Section 4 has been in there, the original nuclear option, to protect the national government from institutional collapse. It is an outrage to use the filibuster to block even the power of the national government to save itself. Surely that must have at least the same priority as enacting a budget by majority rule.

Let the vice president show some muscle in defense of her country. Let the debate start on January 17 with a ruling from the chair that Rule 22 is in conflict with her own right to cast a vote when the Senate is evenly divided. Then let her dare the Senate to overrule her. To reclaim the right to vote in the blocked legislation, she should begin with reclaiming her own right to vote, as well.

By a quirk of history, the plot against America is now also a plot against a Black woman’s right to vote. Who says the vice president has nothing to do?