THEY HAVE THE VOTES | Filibuster 101 | Gorsuch To Be Tie-Breaker On Immigration
April 4, 2017
C'EST POSSIBLE
|Sound the alarm — Democrats have the votes they need to reach the filibuster threshold, dangerously close to triggering the nuclear option. Republicans have promised that if the Democrats filibuster and block a vote on JUDGE NEIL M. GORSUCH, they will move to change the Senate rules and remove the 60-vote threshold on Supreme Court nominees. The new threshold would be 51 votes, not 60, required to confirm a nominee, removing any power from the minority party in this process. As we inch closer and closer to Friday — the day on which SENATOR MITCH MCCONNELL promised a vote — we move closer to the deployment of the nuclear option.
FILIBUSTER 101
|Charlie Savage with The New York Times takes us back to basics with a quick rundown of what a filibuster is, how it works, and what it would mean if it’s taken away for future Supreme Court nominations.
NOW OR LATER
|While we’re thinking of him, Charlie Savage with NYT has another piece for us in which he considers the strategy behind the fight over the filibuster — both the fight happening right now and perhaps one that might take place later should the filibuster survive this week. Savage acknowledges that there are some serious long-term strategic interests at hand, but the strength of those interests may determine their own success, or demise.
PRETTY LITTLE LIES
|Linda Qiu wth The New York Times is here to set the record straight about Gorsuch’s nomination and weed through the SCOTUS spin we’re seeing from both sides of the aisle. She writes, “Senators in both parties have been selectively arguing the facts on the jurist and overstating the Senate’s procedural history.” Read her assessment of the truth in their claims.
ONWARD
|The justices decided yesterday that they won’t be stopping a case concerning PRESIDENT OBAMA’S Clean Water Rule, dealing a bit of a blow to the Trump administration. The water rule provides federal power over small waterways such as streams and wetlands in order to protect them from pollution. The rule remains on hold while it is litigated.
ICYMI
|The Supreme Court yesterday said that it will consider whether corporations can be sued in U.S. courts for complicity in human rights violations abroad. SCOTUS has tried addressing this issue once before in a 2013 case, but it ended up being decided on grounds that are different than the one they chose to take up this week.
POWER OF PERSUASION
|If JUDGE GORSUCH getting to the Supreme Court is an inevitability, let’s consider what influence he may have once he gets there. Justin Wolfers in The New York Times notes that Gorsuch could have enough sway amongst his colleagues to pull all eight of them towards the right, referring to what he calls a “peer effect.” Wolfers: “These peer effects also extend beyond purely partisan differences, and even idiosyncratic reasons for a justice leaning one way will lead some of their peers to follow. To see this, focus on the cases where justices rule on an opinion from a circuit court they previously served on. It turns out that this makes them less likely to vote to overturn that circuit court’s opinion (although this effect diminishes the longer they served on that court). You might normally think this has no further implications. But because of peer effects, it does. Their fellow justices — including those who have no relationship to that circuit court — are also less likely to vote to overturn the circuit court decision.”
THE TIE-BREAKER
|Is it possible that JUDGE GORSUCH could break a Supreme Court tie on immigration? Lyle Denniston with Constitution Daily seems to think so. He says that if DONALD TRUMP’S immigration order gets to SCOTUS, the stage is set for Gorsuch to have the deciding vote in the case.
SCOTUS VIEWS
Neil Gorsuch, the Supreme Court and the ghost of Harry Reid
Fox News“If the nuclear option is necessary to confirm Judge Gorsuch, Republican senators should use it. And they should keep it for all federal judges, just as Democrats did with President Obama’s nominees. This is what Democrats fear most, because with a clear conservative majority on the Supreme Court and more conservatives on lower courts they could no longer expect judges, rather than legislators, to advance their agenda and they would have to be accountable to voters.”
The Gorsuch wreck begins
The Baltimore Sun“If neither side will back down unilaterally, then both ought to find a face-saving way to back down in a bipartisan fashion. Let Democrats agree not to filibuster Judge Gorsuch if Republicans agree not to invoke the nuclear option for the remainder of the term, for example.”
Who the people?
USA Today“In fact, courts have a duty to enforce the Constitution as written, whether those results further the aims of a political majority or of a minority. When courts do so, even if they strike down laws passed by the majority, they are not engaging in judicial activism. They are simply doing their jobs.”