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‘Going Nuclear’ Is Actually Dems Fault and Proof They Haven’t Learned Anything From Hillary’s Loss


Remember when the Democratic party was so hell-bent on nominating Hillary Clinton for the presidency that it flat-out refused to give Bernie Sanders a chance? And when it was so certain that voters would recognize Hillary Clinton as obviously superior to Donald Trump that it was blindsided by thousands of fervent (if utterly misguided) Trump voters? Well I do, and I was really hoping that it had learned its lesson. The ping-pong of the Democratic filibuster against Neil Gorsuch’s nomination, followed by the ridiculous-yet-totally-predictable decision by Republicans to “go nuclear,” is today’s proof that Democrats have learned nothing from the 2016 election.

Today, Republicans voted to change the longstanding Senate rules for invoking cloture (that’s the formal name for “end of debate,” which is delayed by a filibuster). When that vote carried (along expected party lines), an immediate vote for cloture was taken, and it passed 55 to 45. Now that the debating is done, the actual vote to confirm Neil Gorsuch is scheduled for tomorrow.

From an apolitical, purely functional standpoint, this kind of dog-wagging is downright absurd. Whether the organization at hand is a group of children playing on the playground or a Fortune-500 company conducting business, the remedy for lack of agreement is pretty much never changing the rules to make agreement unnecessary. Yes, such maneuvers can be strategic, and may seem clever during the threat stage. But changing the rules of conduct solely as a display of stubbornness is myopic to the point of outright blindness. Reasonable people of all political beliefs know that. And yes, you can go ahead and make that inference there about Congress and its ability to be reasonable.

Before readers blow up my Twitter feed yelling that it was Republicans who made the call to “go nuclear,” let’s just take a minute to discuss basic principles of cause and effect.

Democrats used the filibuster to block Gorsuch’s confirmation. The filibuster was an existing oratorical tool, available to Dems without the need to effect radical change, which definitely makes it a little more honorable than what the GOP did. But every Senator with a pulse knew damn well that the filibuster would trigger this nuclear nonsense. It may have been a chain of events, but in legal terms, we call this a “foreseeable result,” and we blame it on the ones who set that chain into motion. In the case of 2017 Republicans, I’d replace “foreseeable” with “absolutely guaranteed.”

These people have already shown themselves to be, self-serving, unreasonable, and completely bereft of anything resembling integrity. Their decision to block Merrick Garland from even having a confirmation hearing was proof positive of their willingness to abandon even the appearance of fairness in favor of partisan bullshit. These people are not concerned with what is right, what is practical, what is historical, what is American, or what is fair. They are only concerned with what helps them maintain popularity, power, and prestige. Expecting them to act otherwise is a frog-scorpion tale of epic proportions. While use of the filibuster is marginally more defensible than permanent change of Senate rules, Democrats are equally culpable for the ultimate result. In many legal contexts, “knowing” that a particular result will occur is the same as “intending” that result to occur. Democrats know as much, and were apparently too committed to making a show of bravado to resist.

My disgust with the Democratic senators (giving a pass to Joe Donnelly, Heidi Heitkamp, Joe Manchin III, and Michael Bennet here, who voted against the filibuster) isn’t just about their stubbornness. It’s also about their timing. There are topics for which going berserk in the face of Republican absurdity is well-warranted. Since the inauguration alone, there have been plenty of issues on which I’d have applauded a rally around righteousness. But the confirmation of Neil Gorsuch isn’t one of those issues. Gorsuch is not the Muslim ban. He’s not Besty DeVos. He’s not Flynn’s meetings with Russians. He’s not wiretapping allegations and he’s not healthcare. He’s a well-qualified judge with sterling credentials who had wide bipartisan support when he was appointed to the federal bench just a few years ago. I get that he’s not the Democrats’ first choice – and he wouldn’t have been mine either. But putting Neil Gorsuch in Scalia’s seat is hardly the most frightening thing this administration has done. And let’s not forget – Scalia himself was confirmed 98 to 0. If the Democrats in Congress are to earn our votes, they need to exercise theirs with a little more discretion and a lot less bluster. Such measured discipline probably would have won them the election in the first place – but hey, it’s never too late to learn.

Editor’s Note: This post has been updated from an earlier version which incorrectly cited the election year.

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos