I was paying more attention to other stories about tyrants killing Jews this week, so I’m just catching up now to new stories. Folks, Spicer was not actually denying the Holocaust. Was that actually a mainstream claim?
I was quite relieved to read this NY Times story that Steve Bannon reads solid American history, summarized here. Their historical theory is that American history moves in predictable 80-year cycles of crisis and renewal, from the revolution to the Civil War to World War II to the present Trumpian moment. Totally. (And it just happens to be popular in Leninist and Alt-Right circles).
So this is my chance to share my bar mitzvah theory of American history, a turning point every 12 or 13 years (it can become a “bat mitzvah” theory after the 19th Amendment in 1920, but I’m not sure America is ready for that even today). Trust me, it ends with a progressive president, single payer health care, and world peace by 2021.
1756-63: the Seven Years War/”French and Indian” War that leads to the Revolution.
1774-75: The Intolerable Acts and Lexington and Concord start the Revolution (1776 is so overrated).
1787: The Constitutional Convention
1800: The Jeffersonian revolution and the first-ish peaceful democratic transition in power in human history
1812-14: The War of 1812
1824: Andrew Jackson wins a plurality of the Electoral College, but Henry Clay helps JQ Adams “steal” the presidency. The beginning of the “Jacksonian revolution”?
1837: The Panic of 1837 destroys the economy, and transforms state banks and state constitutions. See my book.
1846-1850: Mexican American War to the Compromise of 1850, a turning point in slavery politics.
1861: The Civil War
1873: The Colfax massacre and the real end of Reconstruction
1886: Haymarket! May Day! Or for Admin nerds: 1887, Congress creates the ICC. See my article.
1898: The Spanish-American War on the rise of American imperialism
1912: The election of Woodrow Wilson, ushering in a wave of progressive legislation.
I could keep going, but why not just write a crazy book about it, and see if a crazy presidential advisor will buy it?
It’s hard for me to get morally outraged about Gorsuch’s academic sloppiness when there are so many stronger reasons to oppose his nomination. I can’t say with a straight face that this changes the merits (and really, the demerits) of his nomination. I still care much more about his callous approach to judging (as I wrote about the frozen trucker case) and the likelihood of his non-mainstream views on gay marriage. His answers to Sen. Klobuchar about the special education decision — that he “was bound by precedent” — raised concerns about his legal writing and his thinking about precedent. He was overly eager to signal that he was bound by precedent (ahem, Roe?), but don’t bet on him to follow through, especially when he was not bound to add the word “merely” to water down a special education standard, when the case he was citing did not engage in enough analysis or application of the standard to justify Gorsuch’s minimizing that right. It was also an evasive answer, dodging the substance with an exaggerated claim about precedent.
His evasiveness may not be everyone’s biggest worry, but he was dramatically more evasive than recent nominees, and it establishes a better procedural reason for the procedural filibuster. In 2005, I wrote an op-ed in the Boston Globe, and it may be more relevant for Gorsuch:
“The filibuster is designed to keep debate open procedurally, but the threat of a filibuster should be used to foster debate substantively. The Senate Democrats should announce that they will filibuster a nominee who evades questions, answers questions inconsistently, or seems to be dishonest. If the nominee prevents debate from beginning, the senators should block it from ending.”
“But the flip side is that if the nominee candidly espouses views that seem extreme, the Senate Democrats should commit themselves to defeat the candidate only by an up-or-down vote. If they cannot muster 51 votes after an open hearing, then either the candidate is not so extreme or they need to campaign on these issues in the next election and win.”
The breaking news is that the Democrats have 41 votes to filibuster Gorsuch. I am happy to see the Democrats finally fighting back, but I am worried that their timing and a lost opportunity.
Don’t get me wrong. I have been following the Gorsuch nomination closely, maybe too closely for my own good. I have blogged about why the Democrats should filibuster for long-term strategic reasons. (Getting rid of the filibuster could be beneficial when the Democrats are back in the White House ASAP). I also wrote about his “frozen trucker” dissent in Slate, and how it suggests that Gorsuch may be a callous ideologue. Given how he evaded questions more than even the recent round of Supreme Court nominees, we don’t have a lot to go on, but his dissertation’s signals on gay marriage and fetal personhood, the “frozen trucker” case, and other parts of his judicial record raise significant concerns that he is not a “meanstream” conservative, but that he is probably to the right of late Justice Scalia. He is not an immediate threat to Roe v. Wade (he’d be the fourth vote to overturn it, not the fifth). But my issue is the death penalty and criminal defendants’ rights, and for those isues, he is more likely the fifth vote against my biggest concerns. Under other circumstances, I would agree with voting “no,” and in the past, I have suggested that filibustering a nominee is appropriate when the nominee is too evasive: if the nominee obstructs the confirmation hearing, the Senate should obstruct the confirmation. On top of that, Garland, Garland, Garland. Or more appropriately, Obama, Obama, Obama.
I have been going back and forth in my head about this situation, and I keep going back to the image last week of Devin Nunes in the House, with Speaker Ryan’s support, sabotaging the Russia investigation, and a few days later, Senators Warner and Burr working together to move forward. I don’t want to read too much into Senator Burr’s performance, but it was a sign that some Senate Republicans are willing to cross party lines to investigate the Trump administration. If we had seen no such signs, the Senate Democrats should have played hard ball on everything. But the question now is that, with the Senate Republicans taking a small step forward on Russia, should the Democrats keep moving forward, too?
If I could tell you that allowing a vote on Gorsuch would make one Republican Senator more willing to support the Russia investigation? What if that Senator were the deciding vote on a key committee? And what if filibustering Gorsuch might take that opening from Senator Burr and burn it? Burr is a descendant of Aaron Burr. He has a historic opportunity to make up for his family’s legacy by being a statesman more than ambitious partisan. I’m not suggesting that the Senate Democrats should disarm unilaterally, but I hope they are willing to talk through these two parallel fights, and work out some “understandings” to move forward on both fronts. A filibuster would not just shut down Gorsuch, it would shut down the Senate — not through the “talking” filibuster, but more practically shutting down any progress.
Moreover, I’d suggest one of the reasons so many Republicans — both voters in 2016 and the Congress now — have been so cohesive and partisan is that they are focused on filling Scalia’s seat. Everyone speculated that a number of evangelical conservatives and elite conservatives would stay home in November, but they were more slightly more unified as a party than the Democrats, shockingly. One reason was the open Supreme Court seat: it didn’t matter who would be making the appointment, as long as it was not a Democrat, and especially not Hillary Clinton. There is a chance that once the Senate Republicans get their prize, they may be slightly more willing to compromise.
I’m not sure about any of this perspective. I am often too willing to compromise and to support taking the first step in order to promote compromise. But in this case, I think the Senate Republicans were taking the first step. The Gorsuch appointment will have an enormous impact on American law for 30 years or more. But Trump’s presidency will have an impact for even longer. Restoring just a little bipartisanship now can also start to reverse a course of mutual recriminations that is destroying our country. One seat on the Supreme Court is worth a lot, but resolving this threat is worth more.
In the New Yorker, a most remarkable passage on Nunes’s coordination with the White House:
“The White House and Nunes were clearly coördinating this strategy. A few days before the hearing, Trump seemed to offer a preview of it. In an interview on Fox News, the President said that he “will be submitting things” to Nunes’s committee “very soon,” and “perhaps speaking about this next week,” adding that “you’re going to find some very interesting items coming to the forefront over the next two weeks.”
“Last Monday morning, shortly before the start of the hearing, a senior White House official told me, “You’ll see the setting of the predicate. That’s the thing to watch today.” He suggested that I read a piece in The Hill about incidental collection. The article posited that if “Trump or his advisors were speaking directly to foreign individuals who were the target of U.S. spying during the election campaign, and the intelligence agencies recorded Trump by accident, it’s plausible that those communications would have been collected and shared amongst intelligence agencies.”
“The White House clearly indicated to me that it knew Nunes would highlight this issue. “It’s backdoor surveillance where it’s not just incidental, it’s systematic,” the White House official said. “Watch Nunes today.”
“Sure enough, at last Monday’s hearing, Nunes asked in his opening statement, “Were the communications of officials or associates of any campaign subject to any kind of improper surveillance?” He continued, “The Intelligence Community has extremely strict procedures for handling information pertaining to any U.S. citizens who are subject even to incidental surveillance, and this committee wants to insure all surveillance activities have followed all relevant laws, rules, and regulations.” Nunes made it clear that Trump’s wiretapping claim was false, but he seemed intent on offering the President a fig leaf for the explosive claim. “It’s still possible that other surveillance activities were used against President Trump and his associates,” he insisted. The overwhelming majority of questions from Republicans at the hearing revolved around this issue.
“Last Tuesday evening, Nunes went to a secure National Security Council facility on the grounds of the White House and reviewed intelligence reports, with the assistance of one or more unknown officials. (Michael Isikoff, of Yahoo News, reports that one of the officials may have been Michael Ellis, a former Nunes staffer who now works at the White House. When asked by reporters today, Nunes declined to confirm or deny the report.) The following morning, without informing any other members of the House Intelligence Committee about what he had learned, Nunes went back to the White House and briefed the President on those reports. He held press conferences, one at the Capitol and one outside the West Wing, before and after his meeting with Trump.”
Late last night, Trump blamed Ryan for the repeal/replace failure — before it was totally dead. That’s astounding, and it doesn’t help rally House members. But the even bigger news is the Senate GOP, reported by NBC this morning: The Senate GOP leadership has tweeted that the House bill *cannot* evade a Senate filibuster, meaning that there is no way the House bill can become law. That dumps an ice bucket of cold water on every House Republican. Why would the Senate GOP announce this position this morning? They don’t want this bill to pass, because they don’t want to vote on it at all. So why would a Republican House member choose the worst option: casting a “yes” vote for a disastrous and disastrously unpopular bill, and also failing to repeal anyway? See the report:
“Does the Senate want this bill to pass?
That’s the other part of this equation. Don’t miss what Sen. John Cornyn (R-TX), the Senate’s No. 2 Republican, tweeted last night: “FYI: The ‘Byrd Rule’ is actually a law.” Translation for those unfamiliar with Senate arcana: The legislation that House Republicans are trying to pass probably don’t meet the rules that can avoid a Senate filibuster. Think about it, Cornyn is warning his House colleagues that this legislation can’t pass the Senate. And that’s precisely what Sen. Tom Cotton (R-AR) stated earlier this month: “I would say to my friends in the House of Representatives with whom I serve, ‘Do not walk the plank and vote for a bill that cannot pass the Senate and then have to face the consequences of that vote.”