It’s a drag getting old – you turn into that guy you always made fun of, the crotchety old man who keeps talking about how things were when he was young, when things made sense, and gasoline was twenty-five cents a gallon, and leaded too, as no one cared about residual lead in everything you touched and everything you ate – and when you walked five miles to school each day, in the snow, uphill both ways. Some old guys say they remember when movies were wholesome – somehow forgetting what was wholesome was often awful. There were those Gidget movies. Others say that back in their day there were no gay people – or if there were, maybe, they kept it to themselves – and back then blacks knew their place, as did women, and no one ever saw any Hispanic folks, and Asians did the laundry. Others might talk about how we used to win wars, not just slip away and hope for the best – John McCain, the quintessential grumpy old man, does that a lot. And then there’s music. That big band stuff was great – Goodman and Miller – and that new bop stuff was crap, until the bop stuff was crap and Miles Davis cool modal stuff was wonderful, until it was boring. Patti Page and Perry Como were wonderful and that new rock stuff was crap, until rock became wonderful, before it became quaint golden oldies and it was punk, and then post-punk and on and on. It all depends on when you were born. Things were better then – unless you were born in Pittsburgh. But that’s another matter.
This is tiresome stuff – it’s nostalgia for an imagined world that should be dismissed as displaced anger at getting old and smelly, or the result of one’s politics. Conservatives specialize in nostalgia for what never really was – from Edmund Burke droning on about how the French Revolution ruined everything that was good and noble and beautiful and pure in Europe to the current conservatives prattling on about their imaginary Ronald Reagan, who never once raised taxes and brought down the Soviet Union by simply staring at those guys and never saying a word to them. It’s nonsense. Still some change is real enough – stuff that has changed forever and never will be the same again. Technology introduced that radical change. Now no one knows how anything really works.
Think about it. No one can now fix their car – you can’t fix things by wiping the distributor cap clean or jamming the contacts in the voltage regulator open. Cars don’t have those anymore – it’s all solid-state stuff in sealed boxes now – and if you want to know what’s wrong now you plug into the diagnostic port and see what the computer tells you, because you’ll never know otherwise. Guys don’t work on their cars anymore – they can’t. That’s a job for technicians, not even mechanics – and even those technicians don’t know how things really work. They just swap out one mysterious component for another, as instructed by the diagnostic printout. And it’s the same with computers – no one now sets up their home computer by modifying and extending the underlying DOS code – tweaking the operating system itself. Now they just point and click and hope for the best. No one knows the underlying code, and no one wants to know. It’s the same with your smart-phone and probably your refrigerator. Things work or they don’t. It’s all a mystery. We live in an age where everyone pretty much accepts they have no idea how anything works and they never will.
That’s what’s changed. It’s a fairly new way of seeing the world. Things work, or they don’t work – but the details of how either came about is something only nerds and geeks – theorists and those who write object-level code – could ever possibly understand. Science, in the eighteenth century, promised to make the world understandable – they did call it the Enlightenment after all. The technology of the last several decades has made it opaque again – and we accept that. No one now believes they’ll ever know quite what’s going on, underneath it all. Face it. You’ll never know how things really work. Don’t worry your pretty little head about it.
The problem is that assumption, so often valid, spreads to other areas of life, and politicians find that useful. Everyone knows Washington isn’t working – the House continually passes odd legislation that will never pass the Senate, and if it did, would be vetoed by the president. That’s a total waste of time, and they can’t pass a budget for the same reason – the House will just pass another continuing resolution to keep the doors open and the troops paid. They’ve been doing that for years, running the country on some previous budget from three years ago, extended again and again, or they could refuse to pass anything and shut down the whole government until Obama agrees to cut all domestic spending, and abolish the EPA and Department of Education, and abandon Obamacare, and all the rest – which he won’t do. So there will be no new budget.
The whole system is broken, as in the Senate they have that filibuster, where the minority can keep what the majority wants from ever coming up for a vote – used over and over again to keep anything from getting done. Over the last four years or more little actual legislation has been passed, other than Obamacare and some other matters that somehow slipped through. And then there’s the confirmation of cabinet positions and federal judges – the first a struggle and the second nearly impossible. The Senate is broken. Everyone can see that, and luckily for politicians, most everyone assumes they’ll never know exactly why that is, because no one these days really knows how things work. The guys in the Senate can point to the other guys in the Senate and say it’s their fault – they’re jerks. That’ll fly, because we’ve become convinced that there’s no way to know what’s really happening there.
That’s silly – politics and parliamentary procedure are not exquisitely complex deeply hidden technology. They’re something you can get your hands on and actually fix and there’s a bit of that going on now:
Senate Democratic leaders have engaged in preliminary discussions about how to address Republican procedural obstruction, according to a senior Democratic aide, reflecting an awareness that key administration and judicial vacancies might never be filled, and that a watered-down rules reform deal the parties struck early this Congress has failed.
“The general agreement was that Republicans would only filibuster nominees in the case of extraordinary circumstances, and once again Republicans are expanding the definition of that term to make it entirely meaningless,” the aide said.
The source said conversations are still too preliminary for Democrats to lay out publicly potential avenues of recourse just yet.
They simply know they got rolled. It wasn’t just Chuck Hagel for Defense and John Brennan for the CIA – eventually confirmed, rather easily after all the filibuster threats – and not just that federal judicial nominee, Caitlin Halligan, who had been blocked from confirmation to the DC Circuit Court of Appeals for years – it’s each and every nominee for everything. Halligan is just emblematic:
Halligan is a career government lawyer with broad support among leading conservative and liberal lawyers. But Republicans have redefined “extraordinary circumstance” in her case to mean her authorship of a single brief for her now-former boss, then-New York Attorney General Andrew Cuomo, which earned her powerful enemies at the National Rifle Association.
That’s it – one brief is hardly extraordinary circumstances – but more is at stake:
The Halligan filibuster is something else entirely – an instance of Republicans preventing a federal court from functioning as intended rather than approve non-controversial liberal nominees to fill its vacancies.
The filibuster of Richard Cordray is a more troubling example of the same phenomenon. Republicans have acknowledged his impeccable credentials, but have refused to confirm him or anyone else to direct the Consumer Financial Protection Bureau until Democrats agree to weaken the agency through legislation the GOP can’t pass on its own.
Without a director, the Consumer Financial Protection Bureau will lose much of its regulatory powers automatically. That’s pretty clever. That’s really what’s going on under the hood. It’s sabotage.
The New Yorker’s legal analyst, Jeffrey Toobin, has more to say:
This senatorial entropy has taken an enormous toll on President Obama’s judicial appointments. This was the second time that Halligan received majority support, but, because she never passed the threshold of sixty, her nomination now appears doomed. And so, in the fifth year of his Presidency, Obama has failed to place even a single judge on the D.C. Circuit, considered the second most important court in the nation, as it deals with cases of national importance. (Its judges – like John Roberts, Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg – also often wind up on the Supreme Court.) The D.C. Circuit now has four vacancies out of eleven seats.
You don’t have to be a rocket scientist to see what’s broken:
During the last Bush Administration, Republican Senators grew so frustrated with what they called Democratic obstruction of judicial nominees that they threatened to change Senate rules to limit filibusters on judges. In 2005, the bipartisan “Gang of Fourteen” Senators announced a truce. Democrats agreed to allow votes on Bush’s nominees in “all but extraordinary circumstances,” and they kept to the deal. Bush’s second-term appointees (including two to the Supreme Court) proceeded without obstruction. At least technically, the Gang of Fourteen compromise is still in effect. But Republicans have essentially ignored it – as the Halligan filibuster demonstrated.
It’s odd that anyone sees this as a mystery. The Republicans made an agreement and are laughing at the idea they’d ever do what they said they’d do. As Libby Spencer says – a gentleman’s agreement requires actual gentlemen – they lied about that agreement and now they’re almost laughing about it, which angers Andrew Sullivan:
The current GOP is an inherently revolutionary institution. It has just unveiled a budget proposal so divorced from the center of public opinion, so draconian in its gutting of the safety net and so dedicated to a military more suited to a global empire than a major power it has little chance of gaining traction. But it can obstruct – and it should obstruct up to a point. But that point has long since passed and is now reaching a level of refusing to accept the winner of a general election. To wit: the president has been effectively prevented from getting almost any nominees confirmed for the federal judiciary for the past three years.
Toobin does blame Obama for some of this:
Judicial appointments represent one of the great missed opportunities of the Obama Presidency. In his first term, especially in the first two years, Obama himself bore much of the blame for this. When Democrats controlled sixty Senate seats, Obama was slow to nominate lower-court judges, and his moment of greatest leverage passed. But, since the 2010 midterm elections, Republicans have been at fault, almost entirely.
Toobin says look at the facts:
Since the 2010 midterm elections, Republicans have been at fault, almost entirely. Most nominees are not formally stopped, as Halligan was, but rather are delayed and delayed. Bush’s nominees got votes within weeks; Obama’s take months, even for uncontroversial selections. William Kayatta, Jr., nominated to the First Circuit, waited three hundred days for a vote and then received eighty-eight votes for confirmation. Republicans delay because they can. “The Republican Senators are not punished for it, and they are rewarded by their base,” a senior administration official said.
Sullivan says there’s a false equivalency here:
No president should be required to rush all his judicial appointments in that recently rare window of controlling 60 votes in the Senate. He is not equally at fault here. This should be a steady, reasonable process – especially for utterly uncontroversial nominees. The American system requires some give-and-take, some acknowledgment that when you lose an election, you cooperate with the winner and take some responsibility for important institutions, like the federal courts. And yet this core conservative instinct to preserve the constitutional order and process has disappeared in the fanaticism of the current GOP. They are behaving like moody teenagers with grudges.
There’s no mystery here, there are no black boxes filled with solid-state devices doing things no one really understands. Everyone understands moody teenagers with grudges. They’re a pain in the ass, and given the chance they can ruin everything.
James Joyner points out another aspect of this:
There’s an argument to be made for high level scrutiny being applied to federal judges generally – it’s a lifetime appointment, after all – and for appellate judges in particular – they set precedent that guides thousands of cases. While my longstanding view is that a sixty vote requirement for confirmation is extraconstitutional, if not unconstitutional, I’m amenable to the argument that judicial nominees ought to be well within the mainstream; presidents shouldn’t be able to radicalize the legal system for decades to come by virtue of a slim Senate majority.
But we’re well past that. Senate Republicans aren’t standing firm against radical judges but against Democratic judges. And, no, the two aren’t synonymous; the American people have, after all, elected a Democratic president two cycles in a row and Democrats got more votes for both the House and Senate as well.
Kevin Drum adds this:
Neither party has been entirely consistent on this, nor entirely on the side of the angels. The problem is that obstruction keeps getting ratcheted upward, and it’s now gotten to the point where Republicans are not only filibustering nominees they truly find objectionable, but anyone who has ever in their careers written something that a conservative interest group objects to. In the recent case of Caitlin Halligan, it was a brief she wrote about holding gun manufacturers liable for their products. Not only was this only one document in a long career, it’s a document that doesn’t even represent Halligan’s own views. It was written at the direction of her boss at the time, New York Attorney General Andrew Cuomo.
But although filibustering Halligan was pretty indefensible, that’s still not the worst of it. Even nominees that Republicans don’t object to are being stonewalled. Richard Taranto was confirmed earlier this week for a judgeship 91-0, but only after being forced to wait 484 days. Why? Because the longer the process is drawn out, the less other business the Senate can conduct. Judicial nominees are now mere bargaining chips in Republican games to keep the Senate from accomplishing anything…
Things are broken and that’s why – that’s what went wrong – and Drum adds this:
I can only assume that Republicans are banking on Democrats being unwilling to escalate this war even further the next time a Republican is president. Or maybe they’re treating this the same way they do the deficit: if they make things bad enough on their watch, Democrats practically have no choice except to repair things on theirs. Both seem like risky bets. If there’s a grand bargain we need right now, it’s not really over the deficit. It’s over the growing inability to effectively govern the country because too many positions, both judicial and executive, are being left vacant for purely political reasons. Maybe we need a bit of presidential schmoozing over this.
Maybe, or maybe we need people to see there’s no mystery here. It’s just that no one believes that anymore – we now live in a world where almost everything is mysterious, where we know that we will never know how things really work. That’s awfully convenient for politicians, but don’t worry your pretty little head about it. You aren’t supposed to know. The Senate is a different place now. The world’s a different place now, not like in the old days… but you knew that.