Filibuster or Bust!

By Bill Maher

There were a lot of reasons to filibuster Neil Gorsuch: Merrick Garland, unanswered questions about Russia colluding with the guy who appointed him, and the fact that he really is too far out of the judicial mainstream, just as his hero, Antonin Scalia, was. So bravo, Democrats. It’s worth taking a stand, even if you get nuked sometimes. 

Let’s clear up some myths about judicial filibusters, though, shall we? 

Myth: “Filibusters of Supreme Court justices are unprecedented!” 

Fact: Republicans successfully filibustered Abe Fortas, the associate justice nominated by Lyndon Johnson to be chief justice in 1968. This pushed the pick to Nixon, who made the more conservative Warren Burger chief justice. 

Fun fact: the last Democratic president to get his Supreme Court pick confirmed by a Republican senate was Grover Cleveland in 1895. The Atlantic once pointed out that, since then, six different Republican presidents have had 12 nominees confirmed by Democratic senates. If Republicans want to cite history, they can start complaining after they’ve confirmed 12 Merrick Garlands. 

Myth: “This whole mess started with what Democrats did to Bork! How dare they!” 

Fact: Bork wasn’t filibustered. He got an up-and-down vote, and lost 58 to 42, as he should have, because he was a right-wing loon. 

It’s interesting to revisit what Ted Kennedy said about Bork to kick off the hearings in 1987: 

“Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”

Is that so much different from Neil Gorsuch’s America? Or has living in Thomas, Alito, Roberts, and Scalia’s America just normalized right wing radicalism? Nobody expects Gorsuch to be anything but a solid reactionary vote on abortion, racial issues, the environment, campaign finance, and separation of church and state issues, and he said nothing during his confirmation to dispel those fears. Even centrist senators shouldn’t accept that. 

Myth: “Democrats filibustered Bush’s federal appeals court nominees!” 

Fact: Bush got 62 nominees to the federal appeals court confirmed. Senate Democrats filibustered 10 of the worst ones. Republicans threatened to use the nuclear option, and a “Gang of 14” senators made a deal to confirm five, and deny five. 

This is what the filibuster is there for in the first place! For minorities to be able to veto a few of the bad apples. 

That said, all too often we get caught up in the partisan nitty gritty. Shouldn’t we step back and ask, “Is this fair?” It’s tough to get 60 votes on anything. Sixty percent of Americans can’t agree on evolution. Should the threshold be 55? Should we not have it at all? 

Consider some of the things we would have had under Obama if Republicans didn’t filibuster: cap and trade, the public option, a $10.10 minimum wage, background checks, the Paycheck Fairness Act (equal pay for women), the Dream Act, the American Jobs Act, card check (which made it easier for unions to organize), and the Buffett Rule, among others.