GOP is forcing us to push the button
We can blame Supreme Court Justice Antonin Scalia for much of the political craziness this year. If Scalia hadn’t bit the dust earlier this year Republicans wouldn’t be holding their nose to vote for Donald Trump for president. The Supreme Court is the ballgame. And Republicans have tipped their hand about their true intentions for the court.
When the Senate Republicans announced they wouldn’t even meet with President Obama’s pick to replace Scalia for the Supreme Court their endgame was obvious. Sen. Mitch McConnell and others said they thought the next president should decide who replaced Scalia. It was a hyper-partisan unprecedented dereliction of duty for a political party. But I knew then that even if a Democrat won the presidency, they wouldn’t approve ANY nominee that would tip the balance of the court from conservative to progressive.
Sen. John McCain let the cat out of the bag last week when he said, “I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.” Ted Cruz echoed McCain’s sentiments. The GOP is content with a 4-4 court and probably hopes Justice Ruth Bader Ginsburg, who is 83 and has had serious health problems, dies and makes the court 4-3 in favor of conservatives.
The Republicans are undermining our democracy. They’re failing to do their constitutional duty. So I have a proposal.
If Hillary Clinton becomes President on November 8 and Democrats take control of the Senate (even if it’s 50-50 with Vice-President Tim Kaine breaking the tie) President Obama should withdraw the nomination of 63 year old centrist Merrick Garland.
Hillary Clinton could then nominate someone like 44 year old Federal District Judge Alison J. Nathan to replace Scalia. Nathan graduated from Cornell and was editor of the Cornell Law Review, clerked for Ninth Circuit Judge Betty Binns Fletcher and Associate Justice John Paul Stevens on the Supreme Court, worked in a law firm and was appointed to the U.S. District Court for the Southern District of New York by President Obama in 2011. She would also be the first openly gay Supreme Court justice.
But how would President Clinton get such a young, progressive judge through a sure-Ted Cruz led Senate filibuster?
The Democrats use the nuclear option: kill the filibuster.
The filibuster does not appear in the U.S. Constitution. It was invented in the early 1900s and revised in 1975. As it stands now when a nominee or bill is filibustered it takes 60 votes to break the filibuster so the Senate can vote up or down. It’s a Senate rule and like any Senate rule it can be eliminated with 51 votes.
There’s nothing in the Constitution that says the Senate needs 60 votes to pass legislation or confirm justices. The founders debated the idea of including something like the filibuster but rejected it. The Constitution calls for super-majorities to override a presidential veto, remove a president from office, ratifying treaties and pass constitutional amendments. That’s it.
Neither party has killed the filibuster because they fear being in the minority one day and not having the ability to stop partisan legislation. But now is the time. We’ve seen the Republican Party drag their feet and refuse to govern during the Obama years. And now we’ve seen the unprecedented blockade of an American president’s Supreme Court nominee.
In November 2013 then Senate Majority Leader Harry Reid triggered the nuclear option, killing the filibuster for presidential appointees and federal judges but stopped short of ending it for the appointment of Supreme Court justices. Now is the time to go all the way and drive a stake in the heart of a rule that’s been horribly abused.
Democratic Vice-Presidential candidate Tim Kaine announced this week that the Democrats would kill the filibuster if the Democrats take back the Senate.
A new Democratic Senate should go even further, eliminating holds. Holds are ways an individual senator can hold up legislation in the Senate. They can even do it anonymously by informing the Senate Majority Leader and party leaders. These are rules that no longer serve the American people.
Fox News, Rush Limbaugh, conservative columnists, bloggers and bloviators will make a lot of noise over the death of the filibuster but there’s not a damn thing they could do about it.
Then the Democratic Senate could confirm Nathan to the Supreme Court tilting the court 5-4 progressive. If they’re smart, Justices Ruth Bader Ginsburg, 83, and Stephen Breyer, 78, would step down in the first two years of a Clinton presidency so they could be replaced with younger progressive justices. And if the 80 year old Justice Anthony Kennedy steps down or passes away, we could have a 6-3 progressive majority court for a generation.
It starts with winning the Senate.