Ramesh Ponnuru writes that the entire debate over the filibuster was a phony drama.
Filibusters of Supreme Court nominations have been attempted extremely rarely and have not played a significant role in shaping the court. The Senate is changing the rules so that they never will play one.While people are worried that the legislative filibuster will follow the appointment veto onto the ash heap of history. As Ponnuru points out, the minority only has the right of filibuster because the majority granted it to them and could always take it away.
No majority party in the modern era -- an era in which the Supreme Court has assumed an outsized power to make policy and the political branches are therefore obsessed with it -- was going to tolerate letting a minority block its nominees. Both parties see this point, but only through the lens of partisan paranoia.
When Democrats debated whether to filibuster Gorsuch, some of them said that they should save the filibuster for a more controversial future nominee. But the dominant sentiment among them was that Republicans would end the filibuster as soon as it became an obstacle to them.
Republicans had their own debate about whether to end the filibuster, with some of them saying that they might want to use it against an objectionably liberal nominee in the future. The dominant sentiment among them was that, you guessed it, the Democrats would change the rules if that ever happened.
The Senate minority has rights because the Senate majority grants them, and the Senate majority grants them because its members can picture being in the minority themselves someday. (The fact that several Democrats now say they were wrong to end the lower-court filibusters because Republicans can follow their example is a testament to the fact that the ability to see around corners can’t always be counted on.)Perhaps there will be some law that the Republican majority would feel so strongly about that they would get rid of the legislative veto. The idea of the 60-vote being necessary to pass a law is supposedly to assure that any law passed would have bilateral support and would move the Senate closer to the center in order to surpass the 60-vote limit. If partisanship is going to be so severe that no members of one party would dare work with the other party, that reasoning is less persuasive.
Ponnuru is also correct that voters won't care one way or another that the Senate just ended a tradition. Most probably won't be aware that it happened or won't understand what went on.
Neither mounting the filibuster nor ending it was likely to matter much to voters, either. In the last few weeks, only four Senate Democrats announced that they would refrain from joining the filibuster against Gorsuch. Three of those four said that they were also going to vote for his confGOirmation. The Democrats didn't seem to think that there was any political gain to be had in saying that they were fair-minded enough to allow the nomination to proceed to a final vote even if they would then vote no.
On the Republican side, nobody spoke up for the idea that Gorsuch should be confirmed but that it should also be possible for the minority to filibuster him.
From this behavior, we can surmise that almost all politicians considering the issue believed voters are going to care more about whether they support or oppose Gorsuch than about their stand on procedural issues related to the nomination.
Michael Barone, the great political journalist, once coined the rule that “all process arguments are insincere.” Republicans argued against judicial filibusters during the George W. Bush years and for them in the Barack Obama years.
Why are these arguments so lightly picked up and then abandoned? Because not many people really care about them.
For all the outrage on the left about the Republican action taken today, let's remember that the Democrats were the ones who began the overuse of the judicial filibuster in 2003 in order to block a Hispanic nominee, Miguel Estrada, from being confirmed to the D.C. Circuit simply because they did not want Bush to be able to elevate Estrada to the Supreme Court as the first Hispanic to be so elevated. This isn't a guess that that was their motivation. We later saw emails among Democrats about this plan. As Josh Holmes, a former GOP Senate aide, writes, "McConnell is finishing what Schumer started."
McConnell is ending a fight that a young senator named Chuck Schumer started nearly 15 years ago by rallying the first-ever partisan filibuster of a nominee to the D.C. Circuit Court: Miguel Estrada. Previously, the Senate’s “advise and consent” role was vigorously deployed with fierce partisan tensions but ultimately settled with simple up-or-down majority votes.The Republicans toyed with using the nuclear option to end the judicial filibuster in order to get Bush's nominees to the appellate courts approved and Democrats such as Reid, Schumer, Biden, and Obama took to the floor of the Senate to attack any such effort. Eventually, the Gang of 14, a bipartisan group, came up with a compromise to forestall such an action. Then Harry Reid decided to launch that weapon in order to get Obama's nominees to the appellate courts, particularly the D.C. Circuit. Holmes continues,
Fresh off a drubbing in the 2002 midterm elections, Schumer and a Democratic minority sought to invigorate their liberal base by changing all of that. Leaked internal memos indicated that the Democratic opposition was predicated on the fact that if confirmed, this brilliant young Hispanic conservative would be catapulted onto the short list for a Supreme Court nomination. On that assumption, they were likely correct. At the time, Schumer understood that he could not base opposition to a judicial nominee on politics alone, so the stated reason for his opposition relied on the thinnest of gruel. Despite earning a “well-qualified” rating from the American Bar Association—the legal gold standard and seal of approval—Senate Democrats argued he wasn’t qualified.
As a staffer for McConnell from 2007–2013, I watched him repeatedly warn colleagues on both sides of the aisle not to stray onto an irreversible path of escalation. He disappointed conservative activists when he chose not to filibuster the nominations of justices Sonia Sotomayor and Elena Kagan. He privately and publicly counseled Reid that invoking the nuclear option would bring profound unintended consequences to the Democratic interests that Reid sought to satisfy.Schumer began the judicial filibuster; it's fitting that he should have triggered its demise.
When Reid invoked the partial-nuclear option, nobody could have known when retribution would come. But anyone who has ever followed McConnell’s career should have understood that it would come eventually. McConnell, whose memoir is fittingly titled “The Long Game,” would wait more than three years before moving to end the judicial war once and for all.
As Chris Scalia, the son of the former Justice tweets,
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I agree with Rand Paul and David French that, even though he doesn't need to, President Trump should seek Congressional approval before going to war in Syria. Every year I teach the War Powers Act and explain how no president has acknowledged its reach but still has abided by it...until President Obama's actions in Syria when he sent troops there without any Congressional resolution supporting the action. I think the Congress was just as happy not to have to go on the record one way or another so Obama got away with that. But this is not how military action should be conducted. French writes,
Assad has been engaged in one long war crime since the onset of the Syrian Civil War, and his gas attacks are hardly his deadliest. There has been a casus belli for war against Syria on a continuous basis since the onset of Assad’s genocide, but the existence of a legal and moral justification for war does not always render war wise or just. Nor does it remove the need for congressional approval. There is no reason to forego congressional debate now, just as there was no reason to forego congressional debate when Obama considered taking the nation to war against Syria in 2013.Such military action is stronger if Congress debates it and everyone has to go on the record one way or another. While people like to point out that the U.S. hasn't declared war since World War Two, there have been Congressional resolutions giving the president the power to take military action in Vietnam and both Gulf Wars. That is the route I would hope Trump would take. Make members of Congress put their vote where their mouths are. Many would prefer to wait and then criticize from the sidelines. Perhaps the vote would divide along partisan lines but, in the past, members of Congress took the vote to send our forces into war very seriously and did not vote as partisans, but Americans. Even now, I hope that this would still be true.
Congressional approval is not only constitutional, it serves the public purpose of requiring a president to clearly outline the justifications for war and his goals for the conflict. It also helps secure public support for war, and in this instance it strikes me as reckless that we would not only go to war against a sovereign nation, we’d also court a possible military encounter with a great power like Russia without congressional approval. The nation needs to be ready for (and consider) all the grim possibilities and consequences. If Trump wants to go to war, he should take his case to Congress.
If Trump is going to go beyond sending some missiles at a single air base in Syria, he should go to Congress.
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Jim Geraghty explains how his agenda is being hurt because he hasn't nominated people to key posts. For example, there are three empty seats on the Federal Energy Regulatory Commission meaning that it doesn't have a quorum and so can't vote on some important projects.
For example, Enbridge Energy wants to build a new pipeline to transport Appalachian shale gas to high-demand markets in Canada and the Midwest, including Ohio, Michigan, Illinois, and Ontario. In addition to 255 miles of pipeline that is three feet in diameter, the project would involve the construction of “four new compressor stations, six new metering and regulating stations, and 17 new mainline valves in Ohio and Michigan.” Once completed, it would be capable of transporting 1.5 billion cubic feet of natural gas per day. According to a union representative, welders and journeymen on the project would make $53 per hour plus benefits. The whole project would cost $2 billion and was originally slated to be completed this autumn.
But without a quorum, FERC can’t give the project final approval. These are states that President Trump carried in November, states that could use the kind of blue-collar jobs that Trump promised to bring back, and that Enbridge’s pipeline could deliver. (Project managers say 79 percent of the pipeline will be built by union labor.) One would think getting such projects approved would be high on the White House’s priority list.
It seems that James Comey is back taking a questionable role in a political case. As Kimberley Strassel reports, he has refused to tell Congress who requested to unmask Mike Flynn's name. There is a crime involved and it's the only crime we actually know has happened - someone unmasked Flynn's name from a conversation with the Russian ambassador then someone leaked that name to the media. That's a felony.
Why? Because such leaks expose American intelligence sources and methods, putting national security at risk. Moreover, leaking the names of private citizens under surveillance (with the express intent to cause harm) is among the grossest violations of civil liberties. It is what police states do.But James Comey has decided not to tell Congress who started the chain of actions that led to Mike Flynn's conversation being leaked to the media.
The Washington Post story about Mr. Flynn’s conversation cited as its sources “nine current and former officials” who “had access to reports from U.S. intelligence and law enforcement agencies.” That means at least nine current or former Obama administration officials or bureaucrats should be looking at criminal charges.
Which brings us to Mr. Comey. Leaks are in the FBI’s purview, and this case ought to be a slam dunk. Unlike in some leak investigations, Mr. Comey has a trail of bread loaves to follow. Someone in the U.S. government had to take the first step of “unmasking”—requesting the identity of—Mr. Flynn. There are records of such requests, easily accessible by the FBI.
The process is then straightforward: March the unmasker to the FBI and require that official—under oath—to confess if he or she passed Mr. Flynn’s name to the media. If not, demand to know to whom that person gave the information. Track down the leakers. Ask a grand jury to indict.
But there’s also the obvious fact that the FBI is one of only a few agencies with the power to grant an unmasking request. Mr. Comey may well have been involved in granting the request to unmask Mr. Flynn. It’s possible he has known the name of the unmasker for months.
Yet the incredibly political Mr. Comey came to Capitol Hill and refused even to confirm the existence of a leak investigation (in contrast to his eagerness to confirm a probe into possible Trump ties to Russia). Worse, sources tell me that Mr. Comey is willfully obstructing Congress’s own investigation into the leaks. He has refused requests for documents that would show who unmasked Mr. Flynn. He has refused to provide that name in a closed meeting to the speaker of the House or the leaders of intelligence committees.
This is enormously problematic, since Mr. Comey has glaring conflicts of interest here. After all, it is possible Mr. Comey’s staff are among the leakers. He has an interest in avoiding an agency scandal.
Mr. Comey is, in fact, obstructing oversight of his own agency. It is Congress’s duty to investigate failings in the intelligence system. It is Congress that authorizes surveillance programs in the first place. And one of its main jobs is to assure itself and the public that intelligence and law-enforcement agencies aren’t abusing surveillance, violating citizens’ privacy. Can anyone say J. Edgar Hoover ? Mr. Comey should not have the power to stymie an outside investigation into his own agency’s practices.
Well, cheers to Ben Carson. I had my doubts that a neurosurgeon could handle the administrative duties of running a large and bloated bureaucratic agency. But his first big announcement is a doozie.
In one of his first acts as HUD Secretary, Carson ordered an audit of the agency. What he found was staggering: $520 billion in bookkeeping errors.What do you bet that similar problems permeate every federal department and agency?
"The total amounts of errors corrected in HUD’s notes and consolidated financial statements were $516.4 billion and $3.4 billion, respectively," the auditors wrote.
But there were plenty of other problems, too.
There were several other unresolved audit matters, which restricted our ability to obtain sufficient, appropriate evidence to express an opinion. These unresolved audit matters relate to (1) the Office of General Counsel’s refusal to sign the management representation letter, (2) HUD’s improper use of cumulative and first-in, first-out budgetary accounting methods of disbursing community planning and development program funds, (3) the $4.2 billion in nonpooled loan assets from Ginnie Mae’s stand-alone financial statements that we could not audit due to inadequate support, (4) the improper accounting for certain HUD assets and liabilities, and (5) material differences between HUD’s subledger and general ledger accounts. This audit report contains 11 material weaknesses, 7 significant deficiencies, and 5 instances of noncompliance with applicable laws and regulations.
The same problems were detailed for each of the last three audits, and the auditors say the continued problems “were due to an inability to establish a compliant control environment, implement adequate financial accounting systems, retain key financial staff, and identify appropriate accounting principles and policies."
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