Friday, November 18, 2016

The future of the filibuster: Part II (Shoes, unlike raincoats, aren't reversible)

Welcome back for Part II in "The future of the filibuster."  Right now, I see the future of the filibuster as pretty bleak.  In Part I, I talked about how the Senate walked right up to the edge of the nuclear option until a group of 7 Senate Democrats caved in 2005, but next came the 2008 election.  Barack Obama became President.  Those 2004 Republicans who insisted that the Constitution required a straight up-or-down vote on all judicial nominees?  They began denying "unanimous consent" on many of Obama's nominees.  A "unanimous consent agreement" is how you impose a time limit on debate in the Senate.  The consequence was to require cloture votes.  Many of those same Senators would then vote no on cloture.  However, the 2008 election gave the Democrats 59 Senate seats, and when Arlen Specter switched from the Republicans to the Democrats, the party had enough to invoke cloture on a party line vote.  Even when they lost their 60th vote from Ted Kennedy's death, they could usually count on a defection or two from Olympia Snowe, Susan Collins, or one of the other few remaining moderates to get a nominee through.  Slowly, but the nominees could usually get through.  Still, Obama had more nominees blocked than George W. Bush.

Reid faced pressure to use the nuclear option.  After all, Republicans threatened the nuclear option for less, but Reid didn't.

And then came 2013.  Minority Leader Mitch McConnell did something truly unprecedented.  He announced that the entire Republican Party would stand unified to block Obama from filling any vacancies on the Third Circuit.  They would filibuster, as an entire party, any nominee, no matter who they are.  No Third Circuit appointees for Obama.  That's the court right below the Supreme Court.  Majority Leader Harry Reid had a choice.  Either let the Republicans have complete control of the second-most important court in the country, or go nuclear.

Here, I apply the concept of "common knowledge of rationality" from game theory, best explained by this classic scene from The Princess Bride.

The problem with Vizzini's attempt to solve the battle of wits is that he can't game it out that way.  Infinite regress.  I am rational.  You are rational.  I know that you know, you know that I know, and so forth.  There is no end point, so you can't solve the game by picking an arbitrary end point.

What does this have to do with Mitch McConnell?  He had to know that Reid couldn't let the Republicans take complete control of the Third Circuit, so he had to know that his maneuver would force Reid to use the nuclear option.  Therefore, he must have wanted Reid to use the nuclear option.  Why?  Well, we'll have to come back to that...

But Reid did it.

Harry Reid threw out the fucking rule book.  He announced that the Senate rules required only a bare majority for cloture when debating court nominees below the Supreme Court, or executive branch confirmations.  Is that what the actual text of the rules say?  Fuck no.  But, might makes right.  "Might" being defined as 51 votes.  Republicans "protested" (having forced Reid's hand), demanded a vote on the ruling, which passed, and now we have a post-nuclear Senate.


Of course, the fact that Reid didn't nuke the filibuster completely is why we are debating the future of the filibuster.  And that's why this is a series.  Stay tuned...

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