The Democrat Party lost the House, the Senate and the presidency. However, they haven’t lost their will to fight. The tactics that likely will be employed are the following.
The courts can be an effective foil against an administration. The following chart shows you that the Democrat Party intends to use the courts as a bludgeon.
The Supreme Court is currently locked in a 4 to 4 tie for most important battles. Likely this will change by mid year, but even with a successful appointment of Judge Gorsuch as the next Associate Justice, that will change only a small number of issues – and each “victory” will take a long time.
The justices decide which cases they will hear. It usually is in the range of about 80 each year. They decide another 50 without hearing arguments. The Supreme Court gets about 7000 requests to hear cases per year, so there are many cases that don’t get heard. These “unheard cases” trudge through the lower courts.
Another time honored technique of the minority party is the “filibuster.” It’s a term we have all heard frequently in this and past administrations and the various “Senate sessions” we have lived through. I was discussing the issue with a very fine lawyer. It turned out that I didn’t know as much about the “filibuster” as I had thought. Perhaps you were misinformed, as was I.
The following was supplied to me by the lawyer with whom I had the discussion (and thanks DG). It is short and informative.
Question: I am having trouble finding the “filibuster” in the Constitution. Can you help me?
Answer: The short answer is because there is nothing there to find: the Constitution does not contemplate the filibuster in any way, directly or indirectly. So, then, what is all this talk about the Framers, the Senate, the filibuster, and its relationship to the Constitution?
By way of definition, the filibuster is a delaying tactic that is a part of the rules of the Senate. It is a word that comes from the Spanish word for “freebooter,” which means “pirate.” The origin seems to be that a person who filibusters is plundering the time and focus of a deliberative body, like a legislature. Specifically, in the U.S. Senate, a filibuster is used by a single Senator or group of Senators to stop or delay action on a piece of legislation. It has long been the tradition of the Senate that debate may not be stopped unless those taking up the debate allow it to be stopped. In other words, once a Senator has the floor, he or she may continue to talk forever. This rule goes back to the very beginnings of the Senate.
The Constitution allows each house of Congress to set its own rules. Early on, both houses had unlimited debate provisions. The House of Representatives, however, as a much larger body, found this rule unworkable and rules to limit debate came into effect. The Senate, until recently, never created such a rule. The term for the use of unlimited debate as a legislative tactic became known as a filibuster in the 1850’s.
The first attack on the filibuster came in 1841, by no lesser a figure than Henry Clay. It survived, though, until 1917, when the Senate adopted a rule allowing a filibuster to be stopped by a two-thirds vote. Such a vote is known as “cloture.” Cloture ended the ability of a single Senator to hold up Senate business, but since a two-thirds vote can be difficult to get, it certainly did not stop the filibuster.
In 1975, the two-thirds rule was changed to three-fifths. Today, the three-fifths rule allows cloture on the basis of the vote of sixty Senators. In 2005, the filibuster again came under attack when threats to filibuster judicial appointments prompted calls for a rule change specifically against filibusters on judicial appointments. (See footnote – the “nuclear option” does not apply to Supreme Court nominees – RF).
So the filibuster has its constitutional origins in the ability of each house of Congress to set its own rules. It has its origins in the framers in that they saw the Senate as a place where extended debate and discussion would have a cooling effect on the actions of the more “heated” House. And it has its origins in the concept ingrained in our political system that the rights of the minority must be protected from the force of the majority.
Personally, I am unresolved and unsettled on this issue and doubtful and dubious that our elected representatives will end up making the “right” decision on the matter. They have a fairly dismal track record of late.
Whatever else may be said of the Trump administration when it comes to an end four or eight years hence, one word will likely be used by every historian: tumultuous!
Senate Majority Leader Harry Reid (D-Nev.) pulled the trigger in 2013, deploying a parliamentary procedure dubbed the “nuclear option” to change Senate rules to pass most executive and judicial nominees by a simple majority vote. The Senate voted 52 to 48 for the move, with just three Democrats declining to go along with the rarely used maneuver. From now until the Senate passes a new rule, executive branch nominees and judges nominated for all courts except the Supreme Court will be able to pass off the floor and take their seats on the bench with the approval of a simple majority of senators. They will no longer have to jump the traditional hurdle of 60 votes, the filibuster, which has increasingly proven a barrier to confirmation of Obama judicial nominees. Of course, the Democrats were in the majority at the time. Now the worm has turned.