Wednesday, July 17, 2013
Nuclear Option Fallout
As we noted in our extended edition on Tuesday, Senate Majority leader Harry Reid did not end up pushing the button on the "nuclear option" that would have changed the filibuster rules in the Senate.
Like Ed Kilgore at The Washington Monthly, some of our staff members were a bit disappointed that Sen. Reid didn't lay legislative waste to the long-abused rules of the Senate filibuster. Still, Tuesday's deal with Senate Republicans to at least modify how the Senate uses the filibuster was a major win, both for Harry Reid and indeed for the Senate itself.
As Greg Sargent explained at The Plum Line blog, the agreement is fairly simple. Under the new rules, President Obama's nominations for all open Executive Branch positions will get more than 60 votes to break any filibuster on cloture. In practical terms, that means President Obama now only needs a majority vote in the Senate for confirmation of his choices.
Democrats also didn't agree to put the legislative nuke back in its silo - meaning Senate Republicans will continue to have the fallout from the near-nuclear option hanging over their heads for the foreseeable future. While some Republicans still see this whole event as a giant turkey, as Sahil Kapur noted at TPM, the deal still leaves the 60-vote threshold alive for nearly everything else in the Senate.
Finally, in exchange for Republicans discontinuing their nullification-by-filibuster policy, Democrats had to agree to replace two of President Obama's nominees for the National Labor Relations Board with two new nominees, chosen by the president, in consultation with labor groups. The White House wasted no time choosing new nominees, sending over the names of two new nominees for the NLRB before dinnertime on Tuesday.
While there is still some grumbling on all sides, the deal to avoid enacting the nuclear option isn't really a giant turkey for either Republicans or Democrats.
The arrangement, worked out by Sen. John McCain - who effectively depantsed Senate Minority Leader Mitch McConnell politically by going around him to actually work WITH Senate Democrats - will work to the advantage of whichever party holds both the White House and the Senate majority in the future. It also tends to turn down the temperature in the Senate by lessening a major route for immature "payback" and pure obstructionism - which in theory should mean the Senate has more time to actually get bills passed.
As Dave Weigel of Slate noted, if Americans actually paid attention to the recent history of the Senate, Tuesday's last-minute de-fuse of the nuclear option shouldn't really have been too big a surprise.
Still, as Jonathan Cohn at The New Republic made clear, Sen. Reid and the Democrats got a very big win over McConnell and the Republicans. So did every American who truly cares about protecting themselves and their fellow citizens from the predatory monsters on Wall Street, as well as those Americans fighting to build and strengthen unions.
On an effective basis, the filibuster in the Senate really was reformed on Tuesday, meaning that more actual governing may once again happen in Washington - at least outside the reach of the House of Representatives.
Tuesday, July 16, 2013
Time To Light 'Em Up
While the temps near our DC offices are forecast to get near 100ºF this week, we have no doubt that inside the Old Senate Chambers last night, and inside the normal Senate chambers today, will be where the real heat is at.
As you may know, the full U.S. Senate - all 100 members - met yesterday evening in the Old Senate Chambers to discuss a possible way around Senate Majority Leader Harry Reid invoking the infamous "nuclear option" in the U.S. Senate. Since no deal was reported out of that meeting, we fully expect Majority Leader Reid to push ahead with all seven votes on President Obama's nominees this morning.
If Sen. McConnell and the Republican leaders in the Senate balk, stall, or try to obstruct a vote on any of those nominees, Sen. Reid has confirmed he will push the metaphorical button, and use the so-called nuclear option to change the rules in the U.S. Senate. That the Republicans' obstructionist ways will finally blow up in their faces shouldn't surprise anyone - and frankly, this rule change isn't anything to fear.
The level of rule change Majority Leader Reid is looking for isn't a complete elimination of the filibuster in the Senate. Rather, it's an adjustment that actually brings the Senate closer to both the letter and the intent of the Constitution, specifically Article II, Section 2, Clause 2 - The Appointments Clause.
The Appointments Clause empowers the President of the United States to appoint individuals to positions, including cabinet level agencies, with the "advice and consent" of the Senate. There's nowhere in this clause, or in any of our country's founding documents that says this power had a duel use, as both a way to confirm nominees and a way for the Senate to prevent a President from picking the people that President wants to work with in the Cabinet. The Senate is simply supposed to advise, and then, if a majority of Senators agrees, consent to the President's nomination. That's a majority of Senators - not a supermajority.
Yet, as Sen. Reid noted in his Monday press conference at the Center For American Progress, Republicans in the Senate have used the filibuster at such a high rate, if they continue at this pace, before the end of his second term, they'll have blocked more of President Obama's appointments than all other Presidents have had blocked by the Senate, combined.
There's absolutely no reason for this kind of nullification tactic by Republicans - or anyone else for that matter. Indeed, as the Washington Post's Greg Sargent noted Monday morning and as Sen Tom Harkin of Iowa noted Monday afternoon, Republicans aren't filibustering President Obama's nominees for any reason other than as an act of nullification.
As Sargent also correctly noted, even longtime GOP House and Senate staffer Richard Arenberg conceded last week that the way Republicans have been using the filibuster to block presidential nominees under President Obama has been effectively "poking the Democrats with a sharp stick."
That Harry Reid has finally been pushed to the point of using the Constitution to blow away at least some of the pointless and infantile obstruction of the Republican Party may blow back a bit in the faces of Democrats, true.
More likely, though, using the "nuclear option" to fix the Senate, and make it more functional again, will force sane Republicans in the Senate to truly take on the tea bag extremists in their own party - and that's an explosion we've been waiting a long time to see.
As you may know, the full U.S. Senate - all 100 members - met yesterday evening in the Old Senate Chambers to discuss a possible way around Senate Majority Leader Harry Reid invoking the infamous "nuclear option" in the U.S. Senate. Since no deal was reported out of that meeting, we fully expect Majority Leader Reid to push ahead with all seven votes on President Obama's nominees this morning.
If Sen. McConnell and the Republican leaders in the Senate balk, stall, or try to obstruct a vote on any of those nominees, Sen. Reid has confirmed he will push the metaphorical button, and use the so-called nuclear option to change the rules in the U.S. Senate. That the Republicans' obstructionist ways will finally blow up in their faces shouldn't surprise anyone - and frankly, this rule change isn't anything to fear.
The level of rule change Majority Leader Reid is looking for isn't a complete elimination of the filibuster in the Senate. Rather, it's an adjustment that actually brings the Senate closer to both the letter and the intent of the Constitution, specifically Article II, Section 2, Clause 2 - The Appointments Clause.
The Appointments Clause empowers the President of the United States to appoint individuals to positions, including cabinet level agencies, with the "advice and consent" of the Senate. There's nowhere in this clause, or in any of our country's founding documents that says this power had a duel use, as both a way to confirm nominees and a way for the Senate to prevent a President from picking the people that President wants to work with in the Cabinet. The Senate is simply supposed to advise, and then, if a majority of Senators agrees, consent to the President's nomination. That's a majority of Senators - not a supermajority.
Yet, as Sen. Reid noted in his Monday press conference at the Center For American Progress, Republicans in the Senate have used the filibuster at such a high rate, if they continue at this pace, before the end of his second term, they'll have blocked more of President Obama's appointments than all other Presidents have had blocked by the Senate, combined.
There's absolutely no reason for this kind of nullification tactic by Republicans - or anyone else for that matter. Indeed, as the Washington Post's Greg Sargent noted Monday morning and as Sen Tom Harkin of Iowa noted Monday afternoon, Republicans aren't filibustering President Obama's nominees for any reason other than as an act of nullification.
As Sargent also correctly noted, even longtime GOP House and Senate staffer Richard Arenberg conceded last week that the way Republicans have been using the filibuster to block presidential nominees under President Obama has been effectively "poking the Democrats with a sharp stick."
That Harry Reid has finally been pushed to the point of using the Constitution to blow away at least some of the pointless and infantile obstruction of the Republican Party may blow back a bit in the faces of Democrats, true.
More likely, though, using the "nuclear option" to fix the Senate, and make it more functional again, will force sane Republicans in the Senate to truly take on the tea bag extremists in their own party - and that's an explosion we've been waiting a long time to see.
Monday, July 15, 2013
Symbols Of Injustice
"Even when we already know the likely outcome of some events, we can still be amazed at how some of those events unfold - and how persons involved in those events can justify horrible outcomes as acceptable."
That's how we began a commentary back in 2012 about stupidity in law and politics, in which we wrote about George Zimmerman's murder of Trayvon Martin. Sadly, we didn't know how prophetic those words would be.
In case you missed the news, on Saturday night, George Zimmerman - a man who admitted to shooting and killing the unarmed, innocent, barely 17-year-old Trayvon Martin in Sanford, Florida in February of 2012 - was acquitted of second degree murder in a Florida courtroom. While George Zimmerman may be legally not guilty of second degree murder, he will never escape the fact he killed an innocent boy.
Even so, George Zimmerman got to go home. He'll likely get his gun back. Trayvon Martin is still dead, and the legal system in Florida - because it cannot be called a justice system - failed him. That system isn't some mechanical thing, though. That so many groups and individuals failed the innocent Trayvon Martin hasn't been lost on us.
To start with, Mr. Zimmerman, who was supposed to be a "Neighborhood Watch Captain" failed in his duties, completely. Not only should Zimmerman - a man convicted of assault more than once - not have been carrying a weapon on his neighborhood watch duties. He shouldn't have even been allowed to carry a gun. Sadly, we've discussed the failures of the gun lobby to be responsible more times than we'd care to count in these pages.
The Florida legislature also failed the young Trayvon Martin - though we have a strong suspicion the laws in Florida are actually meant to be unjust. Even so, as writers Josh Marshall and Eugene Volokh point out, the self-defense statutes in Florida, and indeed around the nation, don't actually match up with what common sense - and the original common law they were based on - should be.
The Florida State Attorney General and the Seminole County prosecution team also obviously failed in their duties. There are concerns about how they handled evidence, and about how race was and was not used as a factor in court, in what was an obviously a racial shooting incident. The list of failures by the prosecution team may even spur U.S. Attorney General Eric Holder to file charges against both the prosecution team and Mr. Zimmerman himself.
The upside, such as it is, to all this failure, is that George Zimmerman has to spend the rest of his life being George Zimmerman. As both supporters of Trayvon Martin and of Mr. Zimmerman noted over the weekend, Mr. Zimmerman isn't even safe in his own hometown of Sanford any longer - and he likely won't feel safe in most places in the United States.
Further, there are still more lawsuits Zimmerman will have to face, including a civil lawsuit where he will be forced to testify, and that legal experts we've consulted note he is highly likely to lose.
If there is any individual justice for Trayvon Martin, that may be part of it: that George Zimmerman is now sentenced to a life of perpetual paranoia, and unending lawsuits with little hope of ever being anything more than a living symbol. For gun nuts, racists, and Fox News viewers, that symbol will be as a hero who can effectively roam neighborhoods freely at will, dispensing "justice" vigilante-style, as Charlie Pierce so eloquently noted at Esquire.com.
For the rest of us, Zimmerman should be a symbol of how all Americans have failed, and are continuing to fail, in ensuring we have a true justice system, and not just a legal system.
That's how we began a commentary back in 2012 about stupidity in law and politics, in which we wrote about George Zimmerman's murder of Trayvon Martin. Sadly, we didn't know how prophetic those words would be.
In case you missed the news, on Saturday night, George Zimmerman - a man who admitted to shooting and killing the unarmed, innocent, barely 17-year-old Trayvon Martin in Sanford, Florida in February of 2012 - was acquitted of second degree murder in a Florida courtroom. While George Zimmerman may be legally not guilty of second degree murder, he will never escape the fact he killed an innocent boy.
Even so, George Zimmerman got to go home. He'll likely get his gun back. Trayvon Martin is still dead, and the legal system in Florida - because it cannot be called a justice system - failed him. That system isn't some mechanical thing, though. That so many groups and individuals failed the innocent Trayvon Martin hasn't been lost on us.
To start with, Mr. Zimmerman, who was supposed to be a "Neighborhood Watch Captain" failed in his duties, completely. Not only should Zimmerman - a man convicted of assault more than once - not have been carrying a weapon on his neighborhood watch duties. He shouldn't have even been allowed to carry a gun. Sadly, we've discussed the failures of the gun lobby to be responsible more times than we'd care to count in these pages.
The Florida legislature also failed the young Trayvon Martin - though we have a strong suspicion the laws in Florida are actually meant to be unjust. Even so, as writers Josh Marshall and Eugene Volokh point out, the self-defense statutes in Florida, and indeed around the nation, don't actually match up with what common sense - and the original common law they were based on - should be.
The Florida State Attorney General and the Seminole County prosecution team also obviously failed in their duties. There are concerns about how they handled evidence, and about how race was and was not used as a factor in court, in what was an obviously a racial shooting incident. The list of failures by the prosecution team may even spur U.S. Attorney General Eric Holder to file charges against both the prosecution team and Mr. Zimmerman himself.
The upside, such as it is, to all this failure, is that George Zimmerman has to spend the rest of his life being George Zimmerman. As both supporters of Trayvon Martin and of Mr. Zimmerman noted over the weekend, Mr. Zimmerman isn't even safe in his own hometown of Sanford any longer - and he likely won't feel safe in most places in the United States.
Further, there are still more lawsuits Zimmerman will have to face, including a civil lawsuit where he will be forced to testify, and that legal experts we've consulted note he is highly likely to lose.
If there is any individual justice for Trayvon Martin, that may be part of it: that George Zimmerman is now sentenced to a life of perpetual paranoia, and unending lawsuits with little hope of ever being anything more than a living symbol. For gun nuts, racists, and Fox News viewers, that symbol will be as a hero who can effectively roam neighborhoods freely at will, dispensing "justice" vigilante-style, as Charlie Pierce so eloquently noted at Esquire.com.
For the rest of us, Zimmerman should be a symbol of how all Americans have failed, and are continuing to fail, in ensuring we have a true justice system, and not just a legal system.
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