Golfers call it a Mulligan, named after the golfer David Mulligan who, after slicing a shot on his first tee, replaced his ball with another. He originally referred to it as a “correction” shot, but later amended it to say it was a Mulligan. The term stuck and today it is widely understood by most people as a do-over. There’s only one catch: you can only use it once. Once employed, it’s gone; no more Mulligans, no more do-overs.
I’ve been thinking a lot about the Neil Gorsuch nomination and Eric Segall is right: Democrats should not filibuster him. He’s going to get confirmed regardless of what they do. As Segall adroitly observed, “Leaving the filibuster on the table is the best strategy for people taking a long view of the future of the United States Supreme Court.” In other words, Dems shouldn’t waste their Mulligan on this nominee. Segall quotes Rick Hasen, a professor at the University of California at Irvine:
Democrats hold a pair of twos. They don’t have much they can do. Triggering a fight over the filibuster will gain attention, but Democrats can only do it once. The Gorsuch nomination restores the balance of power on the Court to the position it was in before Justice Scalia’s death.
Imagine if in a year or so Justices Breyer, Ginsburg, or Kennedy leave the Court. Then things get MUCH worse from the point of view of progressives. Then Roberts becomes the swing voter and there goes affirmative action, abortion rights, etc. If you think things with the Supreme Court are bad for progressives now they can get much, much worse.
Better to save the firepower for that fight. It is possible that Senators like Susan Collins would be squeamish about such a nominee, and they might not vote to go nuclear. At that point, people can take to the streets and exert public pressure.
I’ve never been one to shy away from a fight, and let’s face it, Democrats need to show their base they can put up a good one. But there’s a difference between a fight and a massacre. With the Trump Administration imploding before our very eyes, Democrats will have plenty of opportunities to thwart his agenda, or the agenda of a President Mike Pence if to comes to that, which it very well might. What they can scarcely afford is to gift-wrap a victory for Mitch McConnell, who you can bet the ranch will go nuclear if push comes to shove.
The GOP just suffered a humiliating defeat on healthcare. They will pull out all the stops to get one in the win column. Democrats should let them have this round by voting for cloture on this nominee. They can still vote against him on the floor of the Senate. Gorsuch will get his 52 votes and be confirmed. Progressives will scream bloody murder and threaten primary challenges on all the DINOs who “caved.”
The point is the filibuster will still be in Chuck Schumer’s back pocket for him to use on the next Supreme Court vacancy or, dare I say it, another hair-brained healthcare scheme. Remember, if the House passes a bill and the Senate parliamentarian concludes it doesn’t qualify under the reconciliation rules, the only thing stopping Trump from signing it into law will be eight Democratic senators; the exact number needed to get to the magical 60-vote threshold.
But if McConnell invokes the nuclear option, there goes the Affordable Care Act and, while we’re at it, just about every fucking thing progressives care most about. Nothing will be able to stop the GOP from enacting its agenda on the country. Just wait until they start on their beloved tax reform. You thought Reaganomics was a joke? You ain’t seen nothing yet.
Look, I know this hurts. This seat was stolen. Period! By all accounts Merrick Garland should be sitting on the bench right now hearing cases. His nomination never made it to a vote thanks to McConnell. But let’s not make Garland out to be Thurgood Marshall. As I’ve said before, he’s what we refer to as a center-right conservative, as opposed to what passes for conservative in this country nowadays.
If progressives are going to lose their shit over the loss of a center-right seat on the Supreme Court and, even worse, force Democrats to fight wars they cannot hope to win, four years from now this nation will be completely transformed and the biggest challenge Republicans will face is not bursting into uncontrollable laughter at the sight of their good fortune.
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