One of the most marked characteristics of 21st century political history is the one-sided application of political norms. Democrats have done things like abolish earmarks, adopt "PAYGO" budgeting (in which the long-term stability of the national debt is written into the budget process), and respect the "blue slip" rule, which gives senators a veto over judicial appointments in their home state.
In return, Republicans have shredded those norms the moment they got in the way of their application of power. Word is, they now plan to use imaginary future growth to sidestep PAYGO rules, and it seems likely that the blue slip rule is next on the chopping block.
It's time for Democrats to stop being such gormless chumps, and start matching Republicans' procedural hardball.
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This blue slip rule has been dying a slow death since the beginning of Trump's presidency. The rule (which is really more of a tradition than a rule) was a thorn in liberals' side for President Obama's entire presidency — Republican senators blatantly abused it to keep as many federal court vacancies in their states as possible. Though they didn't use it every single time, it was pervasive — and as this Brookings analysis shows, it was a significant enough obstacle that oftentimes Obama didn't even bother nominating people for vacancies in Republican states — yet Sen. Patrick Leahy (D-Vt.), who chaired the Judiciary Committee when Democrats controlled the Senate, continued to enforce the rule.
Senate Majority Leader Mitch McConnell told the Weekly Standard on Tuesday that he thinks nominations should not require home state senators to sign off, effective killing the blue slip rule — despite the fact that Democratic senators are not being half so aggressive with them as Republicans were under Obama. The next day he walked the comments back — however, since it wasn't up to him anyway, his comments are probably more of a trial balloon. Sen. Chuck Grassley (R-Iowa), the current chair of the Judiciary Committee, makes the real decision, and it seems fairly likely he'll give into the enormous pressure campaign at some point despite promising not to. (Trump has been working with the hard-right Federalist Society to get as many young reactionaries on the bench as possible, and conservative organizations are whipping hard against the rule.)
Now, on the merits, the blue slip rule is a titanically stupid idea. Presidents should get their nominees voted on. The problem is how Democrats allow themselves to be rolled by behaving "responsibly" when it is beyond obvious Republicans will not do the same.
For a much more egregious violation of constitutional norms, look no farther than the Supreme Court seat now filled by Neil Gorsuch. Preventing a sitting president from filling a vacant seat on the court — indeed, not even allowing any hearings for his nominee — had literally never happened before. The seat was, in a quite literal sense, stolen.
Modern Republicans always try to win by cheating — whether it's stealing a Supreme Court seat, rigging district boundaries to give them a large electoral handicap, or disenfranchising as many minorities as possible with Jim Crow-esque voting restrictions.
However, it's important to note that this effort to stack the federal judiciary — and thereby ensure a generation of nutty right-wing judges slapping together tendentious arguments for child labor laws being unconstitutional or some such nonsense — depends entirely on Democrats not fighting back with similarly aggressive tactics when they get a turn at national power.
For example, Congress has the power to organize the federal court system. There is nothing stopping them from adding additional circuit court judges, or entire new circuits, or adding additional justices to the Supreme Court itself.
Republicans would surely scream themselves blue in the face about "court packing" if Democrats tried this. But it's only fair retribution for a procedural escalation that Republicans started.
Indeed, what Republicans did to the Supreme Court is arguably considerably more outrageous than FDR's attempt to change constitutional jurisprudence by adding more justices (without waiting for others to die first) — and they succeeded where FDR did not. After all, the Constitution says nothing at all about the number of justices the court should have, and previous laws have changed the number of justices and altered federal court composition on several occasions. But it does say that the president has the power to appoint justices, subject to the "advice and consent" of the Senate. That phrase has been interpreted as giving the Senate a vote on a nomination — but that is not remotely the same thing as the power to block any nomination, which is why it had never happened before.
There is nothing responsible about being a prissy rule-follower when you're in a vicious, dirty political brawl. On the contrary, all it does is help the other side win, and incentivize them to cheat more. Making it clear that exploiting the system will inspire a response in kind, on the other hand, might someday convince Republicans to just compete like a normal political party.
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