Markos Moulitsas: Kill the filibuster

Back when everyone, including Republicans, thought that American democracy would be served by electing the person who won the most votes, those Republicans had started laying the foundation for a years-long blockade of any new Supreme Court justice.

“There is certainly long historical precedent for a Supreme Court with fewer justices,” argued Texas Sen. Ted Cruz in late October. “I would note, just recently, that Justice [Stephen] Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have.”

{mosads}The conservative Heritage Foundation was certainly aboard the “block any new nominee” bandwagon. “You’ve seen John McCain and others talk about the need to not confirm any liberal nominated to the Supreme Court,” said Dan Holler, Heritage Action’s vice president of communications and government relations. “That’s exactly the right position to have.” He added, “there’s nothing sacrosanct about the number of nine justices.”

They were right, of course. The Constitution doesn’t require nine justices. And Republicans bet that the American people wouldn’t care either way, so they blockaded President Barack Obama’s nomination of Merrick Garland for a year. And their bet paid off. Voters didn’t care, and now, presumably, they get to fill that seat.

Except that the precedent has been set, and Senate Democrats now have a duty to return the favor. Unless the incoming popular-vote loser re-nominates Garland, they should filibuster President Donald Trump’s nominee indefinitely. Republicans argued that the American people should decide the fate of that Supreme Court seat, and the American people responded—a significant majority of them voted for the Democratic presidential candidate and Democratic Senate candidates. There is zero mandate for a conservative justice. Quite the opposite, in fact.

In the face of a relentless Democratic filibuster, Republicans would have several options. They could carry on with eight justices, and hope that they gained a filibuster-proof majority in the 2018 midterm elections. The map certainly favors Republicans. Or, they could nominate Garland, who wouldn’t just be a moderate voice on the court, but at his age (64), wouldn’t be a long-term presence there. Or, they could wait until they had a president actually elected by a majority of the American people, which would be quite the concept, huh?

Or finally, they could eliminate the filibuster altogether, end that undemocratic tool in an already undemocratic, unrepresentative Senate. If you consider it odd that a liberal would be arguing for the elimination of a tool that can slow the Trump-GOP agenda, consider that a mark of intellectual honesty — elections have consequences, and parties that win control should have the right to set the agenda. Our system of government already has sufficient checks and balances — -we don’t need to include new, artificial ones to further slow things down.

But the filibuster allows the minority opposition to avoid accountability, obstructing progress, then blaming the majority for those failures. Heck, the Republican Senate majority likely loves the idea of the filibuster—what better way to oppose the Trump crazy agenda than to let Democrats filibuster it dead? Heck, without a filibuster, Republicans may actually have to do something about ObamaCare, rather than just run against it come election season!

So kill the filibuster! But if Senate Republicans don’t, then Democrats should use it to its full effect, making sure that Supreme Court seat remains vacant until a legitimate government with real popular support gets elected. 

Moulitsas is the founder and publisher of Daily Kos.