Graduate school isn’t like the years of college that preceded it – graduate students don’t mix with undergraduates, who are still into that “college experience” thing. They party. They go to the football and basketball games, and have their sororities and fraternities, or do odd things in various attempts to “find themselves” – as if their real self is hidden under a rock somewhere, if they could just find that one damned rock. Graduate students have already found themselves, for better or worse – they’re doing the tedious work of becoming a Member of the Profession – whatever that profession might be. They’re probably married by then too, perhaps with kids. Graduate school isn’t a matter of self-discovery. It’s a matter of paying the necessary dues, but still, because everyone is on the same campus together, some things are just givens. It was that way at Duke, in the fall of 1970, when basketball season rolled around. Duke hasn’t been a football power since FDR’s first term, but in that part of the world basketball is what matters, for some reason. Yes, like all sports, basketball is inherently meaningless, perhaps purposely meaningless, for the fun of it, but that may be just the reason folks decide to take it seriously. It’s a displacement, something one takes seriously to compensate for the devastating meaninglessness what real life offers, like religion. Sartre or Camus might have something to say about that, but they’re dead, and basketball is a bit of a religion in central North Carolina. Even graduate students can get caught up in it.
It was like that at Duke, and it’s still like that, and of course every religion needs a devil. Set aside the inconvenient fact that Duke’s basketball team has always been called the Blue Devils, because the real devil was ten miles down the road in Chapel Hill, those guys from the University of North Carolina, Chapel Hill. This is one of the great all-time sports rivalries in America – there’s even a rather fine documentary about it – and the NBA is filled with stars from both schools. Michael Jordan was a North Carolina Tar Heel, damn it. That still bothers folks up the road in Durham, but there’s something else that bothers them more. For years, those guys down the road in Chapel Hill cheated. They didn’t break the rules, but they cheated – or they were very clever, in a nasty way.
There’s a reason there’s a shot-clock in basketball. In college basketball you have thirty-five seconds to shoot, or you turn over the ball. In the NBA it’s twenty-four seconds. You can’t just pass the ball back and forth forever, because you don’t have the firepower to score, because your guys always throw up bricks, like they’re blindfolded or something, hoping you can win 2-0 in the end, because the other guys didn’t even get the ball – and that’s incredibly boring to watch too. But that’s what North Carolina’s Dean Smith came up with in the sixties – his Four Corners Offence – all passing and next to no shooting. That wasn’t exactly cheating, but the NCAA kept fiddling with the rules to make him stop, and finally, in the eighties, they just gave up – they introduced the shot-clock. Everyone up the road in Durham smiled. It was about time.
Dean Smith, however, wasn’t the devil, as others had tried this:
The National Basketball Association had problems attracting fans (and television coverage) before the shot-clock’s inception. This was due to teams running out the clock once they were leading in a game; without the shot clock, teams passed the ball nearly endlessly without penalty. If one team chose to stall, the other team (especially if behind) would often commit fouls to get the ball back following the free throw. Very low-scoring games with many fouls were common, boring fans. The most extreme case occurred on November 22, 1950, when the Fort Wayne Pistons defeated the Minneapolis Lakers by a record-low score of 19-18, including 3-1 in the fourth quarter. The Pistons held the ball for minutes at a time without shooting (they attempted 13 shots for the game) in order to limit the impact of the Lakers’ dominant George Mikan. … The NBA tried several rule changes in the early 1950s to speed up the game and reduce fouls before eventually adopting the shot-clock.
The NBA adopted the shot-clock in 1955, and the Minneapolis Lakers, from Minnesota, the Land of a Thousand Lakes, moved to Los Angeles, where there are no lakes – and the rest is history. Dean Smith just took advantage of the NCAA being a little slow, by decades, in reaching the obvious conclusion that it was time to change the rules, because they were ruining the game – but then, if you can keep anything from happening, you can increase your chances of winning, often dramatically. Why not do that, until everyone wises up? His motivation was understandable. He wanted to win, and he often did. He was a rational actor, and despised up the road at Duke. He didn’t care.
If one team chooses to stall, the other team is kind of stuck, and of course it’s the same in politics, as Senate Republicans, in the minority there and thus without firepower, have now made clear that they’re willing to filibuster all of President Obama’s nominees to the DC circuit court – every one of them, not because they have any specific objections to any of them but simply because they want to preserve the court’s conservative majority. That court is, by the way, where every challenge to any specific regulation derived from the Dodd-Frank financial legislation will be heard, and pretty much the last stop before the Supreme Court on most constitutional matters, and there are three vacancies on the court. These guys are now saying Obama is doing something that’s outrageous – he’s “packing the court” – there is no reason that court should have eleven justices when eight would do just fine. Maybe they don’t have a caseload that justifies all those judges, maybe. This is obviously an outrageous Obama power-grab, like when FDR decided the Supreme Court should have fifteen or more members – just so he could get his crappy New Deal stuff ruled constitutional. It’s the same thing, or so they say – FDR was trying to pull a fast one and now Obama is doing the same. The American people should be irate!
No one seems irate, but even though they lost the election, the Senate rules are the Senate rules. There are holds, a courtesy to any one senator, and there is the filibuster, where you use the rule that it takes sixty votes to close discussion, which is why they call it cloture, so only then can you have a vote where fifty-one votes are enough to decide the matter, and there’s no shot-clock. As for the number of justices on a court, should one of the current Supreme Court justices retire or get hit by a bus, while Obama is still in office, it would be safe to assume they’d say the Supreme Court would be just fine with eight justices, not nine, and any attempt by Obama to fill that vacancy there would be another outrageous power-grab. No one takes any of this seriously, but that’s their story and they’re sticking to it.
This court-packing argument may make them seem rather brutal and unethical, but as with Dean Smith down the road in Chapel Hill, who was not really a bad fellow, the problem here isn’t them but with the rules, as Jonathan Chait explains here:
In politics, unused weapons tend to eventually get used. For years, custom dictated the filibuster was a rare tool for use in cases of extreme disagreement (most commonly, by a southern Democrat to block civil rights laws). But custom gave way to power, and the filibuster evolved into a routine supermajority requirement for all legislation. This year, Senate Republicans have taken the next logical step: using the filibuster to prevent President Obama from filling vacancies in his administration and the judiciary.
This method, like other uses of the filibuster, proceeded evolutionarily from the old methods. Senators of both parties have previously used filibusters to block nominees they found especially objectionable. What Senate Republicans have done this year is a difference of degree that amounts to a difference of kind: They have declared their intent to impose permanent vacancies in Obama’s administration and in three swing seats in the crucial DC Circuit Court.
They’re not cheating, exactly, but rules can be changed:
The Senate majority has an unused weapon of its own: the nuclear option, which is a simple majority vote to limit (or, in theory, abolish) the filibuster. In 2005, Senate Republicans used the nuclear option as a threat to force Democrats to stop filibustering George W. Bush’s judicial nominees – conservative pundits at the time widely deemed the judicial filibuster an outrageous violation that should be banned for all time. Earlier this year, Senate Democrats threatened the nuclear option to lift a blockade on nominees to the National Labor Relations Board and the Consumer Financial Protection Bureau. Republicans capitulated, granting the president’s general right to staff his own administration. Now the question is whether they will do the same with judges.
No one knows the answer to that, which leads Chait to offer this:
Ideally, the Senate would find some mechanism that would be strong enough to allow the minority to block unusually extreme judges from the bench, but weak enough to prevent the minority from issuing a total blockade on even qualified judges. That would require the creation of some sort of creative power-sharing arrangement that gives formal definition to the devilishly ill-defined concept of “advice and consent.” But the trend in American government has been that power does not get shared, and instead flows to whichever party has the will to seize it. Senate Republicans have seized new powers by imposing a judicial blockade on the DC. Circuit, and the only available Democratic response appears to be seizing back more power still.
That seems to be the case now, as Senate Majority Leader Harry Reid has pretty much given up on this odd minority playing its version of Dean Smith’s four-corner offense, standing around doing nothing much at all, because they know they can win that way. Reid no longer thinks there’s any chance of brokering a compromise, even if someone like Jonathan Chait can imagine one, theoretically, in a different political universe. We have what we have, and the only option left. The Washington Post’s Greg Sargent has been hanging around with the right people, and according to an anonymous senior leadership aide, now the plan is to go nuclear and do away with the filibuster entirely:
“Reid has become personally invested in the idea that Dems have no choice other than to change the rules, if the Senate is going to remain a viable and functioning institution,” the aide says… Asked if Reid would drop the threat to go nuclear if Republicans green-lighted one or two of Obama’s judicial nominations the aide said: “I don’t think that’s going to fly.”
It’s too late:
Reid has concluded Senate Republicans have no plausible way of retreating from the position they’ve adopted in this latest Senate rules standoff…. Republicans have argued that in pushing nominations, Obama is “packing” the court, and have insisted that Obama is trying to tilt the court’s ideological balance in a Democratic direction – which is to say that the Republican objection isn’t to the nominees Obama has chosen, but to the fact that he’s trying to nominate anyone at all.
Reid believes that, having defined their position this way, Republicans have no plausible route out of the standoff other than total capitulation on the core principle they have articulated, which would be a “pretty dramatic reversal,” the aide continues.
Can Reid get his fellow Senate Democrats to agree with him? The answer has always been no, they might one day find themselves in the minority and need the filibuster, but now the answer may be yes. The New York Times reports that Republican obstruction has finally gotten so extreme that even those who had been wary are now supporting Reid’s position:
Mr. Reid, of Nevada, has picked up crucial support from some of his more reluctant members recently. Senator Patrick J. Leahy, Democrat of Vermont and the longest-serving member of the Senate today, who is chairman of the Judiciary Committee, has endorsed putting limits on the filibuster despite his history of being protective of Senate institutions. The two senators from California, Dianne Feinstein and Barbara Boxer, said separately on Tuesday that they were leaning toward a rules change. …
The stakes seem higher this time for many Democrats. Many of them strongly believe that if Mr. Obama is not able to appoint any judges to the court – Republicans have rejected four of the five nominees he has submitted – it will retain its conservative bent for decades. [The DC circuit court] is a crucially important court for any White House because it often decides cases that relate to administration or federal agency policies.
At Mother Jones, Kevin Drum says it’s about time:
At various points over the past year, Republicans have refused to confirm any nominees to the NLRB so that it would lose its quorum and be unable to pass new rules; they have refused to confirm any chairman of the CFPB in order to prevent it from functioning at all; they have threatened to destroy America’s credit unless Obamacare was defunded; and now they’re refusing to confirm any nominees to the DC circuit court in order to preserve its conservative tilt. Reid eventually managed to cut deals on the NLRB, the CFPB, and Obamacare, but as Feinstein says, “We left with a very good feeling there would be a new day. Well, the new day lasted maybe for a week.”
Add all this up – the NLRB, the CFPB, the debt ceiling extortion, and the DC court filibusters- and it’s now clear that Republicans have no intention of allowing Obama to govern normally. Instead, they have adopted a routine strategy of trying to nullify legislation they don’t like via procedural abuse.
Procedural abuse! That’s what Dean Smith was up to way back when! That’s one way to put it, or there’s how Greg Sargent frames it:
The GOP position is not grounded in an objection to Obama’s nominees or to the function of the DC. Circuit Court of Appeals; it’s grounded in the argument that Obama should not have the power to make these appointments to the court at all. As Jonathan Chait argues, Republicans may not have even thought through the full implications of the position they’ve adopted. But Dems have, and taking it to its logical conclusion, they believe Republicans have presented them with a simple choice: Either they change the rules, or they accept those limits on Obama’s power. And that really leaves only one option.
If they are arguing that Obama should not have the power to make these appointments to the court at all, as they seem to be, at least by implication, then they are upending our whole system of government. The Senate is charged with making its own procedural rules, but the mechanism by which judges are placed on the bench is also spelled out clearly in the constitution, the overall rule book. Maybe they’re just fooling around, using stall tactics in hope they can win, somehow – or maybe they’re not.
Either way, that UCLA public policy guy, Mark Kleiman, says just nuke the bastards:
I’m on record as saying that a mid-session change in the filibuster rule made by simple majority vote is a breach of the Senate rules. So be it. Extraordinary abuses demand extraordinary remedies. An asymmetric political process, where one side respects convention and the other systematically abuses whatever power it has, is not sustainable.
And it makes for bad basketball too, but then at the Federalist, David Harsanyi suspects Harry Reid is bluffing:
Would Reid really blow up the Senate for some D.C. Circuit Court of Appeals judges? It seems improbable. But if he does, the GOP, should they ever return to power, will have the justification it needs to undo Obamacare – or pretty much anything they please – with their own majority. If the filibuster is neither sacred nor a check on power, there is no reason for legislation or cabinet nominees to be immune from the up-or-down vote. It’s going to mean a lot less stability in DC, a lot more seesawing legislation, and more severe partisanship than anyone in the Senate could possibly desire.
So be it. What we have now is just as bad. Nothing gets done, or can ever get done, although Salon’s Brian Beutler asks these two questions:
1). If Mitt Romney were president, would Senate Republicans deny confirmation to his D.C. Circuit Court of Appeals nominees based on a specious argument that the court’s caseload doesn’t merit a full complement of judges?
2). If Mitt Romney were president, and Senate Democrats were reverse court packing – filibustering all of his judicial nominees, regardless of merit — to prevent him from altering the ideological balance of the D.C. Circuit Court of Appeals, or any court, would Republicans stand for it?
No, and no, and the implications are obvious:
Republicans fully understand what they’re doing, and are provoking a nuclear option crisis intentionally as a gamble on their own political fortunes.
If they call Harry Reid’s bluff, they get to preserve the existing ideological balance on the court, which wouldn’t be a bad outcome for them at all given how much power that court wields over Obama’s regulatory regime.
But because the answers to the above questions are so obvious, Republicans must know they’ve put Harry Reid in an impossible position. It would be an act of political negligence, and of negligence to the constitution, for him to allow the minority to nullify vacant seats on the judiciary, simply to deny the president his right to leave an ideological imprint on a court. …
That’s clearly untenable. Republicans know they’ve given Reid practically no choice. And if he goes nuclear it might prove to be an even better outcome for them. It will provide them a plausible rationale for taking things a step further if they win back the Senate in 2014. Getting Democratic fingerprints on the nuclear rule-change precedent, will provide Republicans the cover they’ll need to eliminate the filibuster altogether in January 2015.
They aren’t just testing the limits of Constitutional norms for fun. They’re testing Reid’s faith in the durability of his majority.
It’s a stall-game, and at the same time it’s a game of chicken, and they know they can win, and they know that Reid is stuck:
Doing nothing will create a huge incentive for Republicans to block many more nominees almost by definition. Not filling the vacancies on the D.C. Circuit will pose a risk to Obama’s legacy in and of itself, even if going nuclear now is a prelude to a narrow GOP Senate majority, and the total end of the filibuster, in 2015.
And that’s to say nothing of the possibility that Republicans will eventually nix the filibuster anyhow, or the compelling proposition that ending the filibuster would be a good thing for the country in the long run. …
Republicans know they’ve given Reid practically no choice. And if he goes nuclear it might prove to be an even better outcome for them. It will provide them a plausible rationale for taking things a step further if they win back the Senate in 2014. Getting Democratic fingerprints on the nuclear rule-change precedent, will provide Republicans the cover they’ll need to eliminate the filibuster altogether in January 2015.
Why can’t these guys just play basketball instead of just standing around? No, wait, that’s the metaphor here, not the thing itself, but then procedural abuse is procedural abuse, and no one wants to see a team win ugly, unless it’s your team, and a win is a win after all. The whole business is infuriating. If only politics were inherently meaningless, perhaps purposely meaningless, for the fun of it – but that’s not the case. These guys are running the country. Can we have a shot-clock?