A Test of Spine in the Senate

The Democratic party has one last chance to reassert itself as a meaningful force in the government of these United States.

That chance resides in the Senate, where Democrats should use what has been the Republicans’ favorite tool — the filibuster — to prevent a vote on the Bannon-Trump regime’s nominee for the vacancy on the United States Supreme Court.

There are two reasons they should do this.

One is that the nominee,  Neil Gorusch, stands even to the right of the man he idolizes and would replace, Antonin Scalia, the worst ideologue ever to sit on the highest bench in the land. The framers of the Constitution clearly intended that the Supreme Court should be a place for impartial legal judgement, not political ideology.

The other is that for nearly a year, Republicans used every trick in the book to prevent President Obama from exercising his constitutional right to name Scalia’s successor.  Now the Senate Democrats owe it to their own constituents and to the entire people of the United States to do the same to this tainted nominee.

The Republicans have a majority in the Senate, but they don’t have 60 votes, the requirement to end a filibuster.  Some Democrats would have to defect in order to end a filibuster.  Some have already betrayed their constituencies by defecting to vote approval of unqualified nominees to the Bannon-Trump cabinet.  If they do so again on the Supreme Court nominee, they will have sounded the death knell for their own party.

Senate Republicans could attempt to defeat a judicial filibuster by changing the Senate rules, but that would require 67 votes, and both parties have been reluctant to take this step in previous Senate showdowns over controversial presidential nominations. It’s doubtful this Senate could summon 67 votes for a resolution of confidence that the sun will rise tomorrow.

There is also something called the “nuclear option,” an invention of the discredited “Tricky Dick” Nixon when he was Dwight Eisenhower’s vice president and hence the president of the Senate.  His formulation devolved from yet another bitter contest over judicial nominations. The maneuver has a rather complicated history.

In effect what happens is that the president of the senate declares an issue to be a constitutional question, which throws the issue to the full Senate for a vote decided by simple majority (51) rather than a super majority (60). In  2013, Senate Democrats used the nuclear option to block filibusters of  federal judicial appointments other than those to the Supreme Court.  For the Republicans now to reverse field and apply the nuclear option to the Gorusch nomination to the Supreme Court could add fuel to what is already looming as a historic constitutional crisis because of the despotic manner in which the Bannon-Trump regime has been operating since the day it took office.

The Democratic leader, Chuck Schumer, has yet to demonstrate that he has the spine to put and keep his entire team in line to use the filibuster effectively.  The majority leader, Mitch McConnell, has demonstrated neither the intellectual capacity to grasp the historical significance of a nuclear option showdown, nor the tactical skill to prevent catastrophe and chaos in the national government.

But we’re stuck with what we elected, and the ball is in the Senate Democrats’ court.  Will they run with it or fumble it?