Edge Advocacy Solutions, LLC

15/05/2020

30/01/2019

Legislation Banning Government Shutdowns is a HORRIBLE Idea

With the recent debacle of the 35 day partial government shutdown, some in Congress have been advocating for legislation that would make future shutdowns impossible. This is an absolutely terrible idea.

While it appears on the surface that this would ensure that federal workers could no longer be held hostage by Congress or the White House, what it does is allow Congress to abdicate responsibility for legislating and appropriating money – which is one of the few constitutionally prescribed functions of Congress. However, as any student pulling an all-nighter would tell you, deadlines focus the mind and the effort. After all, if Cinderella’s carriage wasn’t going to turn back into a pumpkin at midnight – she would never have left the party.

In the past, Congress took this responsibility seriously, and generally made sure to move the individual appropriations bills along under normal procedures and regular order, with each bill passing individually and with a lot of bipartisanship. As the old adage went, ‘in Washington, there are Democrats, Republicans, and Appropriators’.

Over time, as certain government activities became more controversial and politically toxic, the appropriations process, which had usually been bipartisan, began to take on some of the ideological and culture wars that have permeated the rest of national politics. This involved the addition of “policy riders”, which are attempts to interject policy proposals originally intended for authorizing committees, into appropriation funding bills. Some of these may be familiar, in the form of bans on funding for Planned Parenthood, the “Hyde Amendment” requiring the segregation of government funding for organizations that provide abortion services, and amendments defunding administration efforts on the environment, healthcare, or changes to military policy.

Legislators on the appropriations committees used to battle to maintain their jurisdiction and keep their bills free of controversial policy riders. Likewise, leaders on the authorizing committees used to jealously guard their jurisdiction to prevent appropriators from enacting policy that was not strictly under their purview. However, as each group became more frustrated with the inability to enact policy through the regular legislative process, and as special interest groups demanded an all-angles approach to achieving their narrow goals, the policy riders became more prevalent.

However, for a time, the practice of earmarking was still enough to ensure that appropriations made it through the process, though more frequently as part of a package of “omnibus” appropriations legislation. Also, it became much more common to see a continuing resolution to extend the deadline by a few days or weeks. Those earmarks provided the carrot to legislators, so that they could explain their vote on a funding bill to their constituents in terms of beneficial local funding and projects, and as an offset to the complaints of special interest groups who would oppose an entire funding package based on the inclusion or exclusion of a single narrow provision.

Then earmarks went away. This was understandable at the time, and in the wake of scandals that exposed a climate among a minority of Members of Congress in selling federal cash to fund projects in exchange for campaign contributions and personal perks. However, reasonable reforms were implemented, but the Tea Party movement, and it’s quite temporary and selective insistence on cutting government spending, removed the practice again. At that point, leadership had no carrots, and was unwilling to use any of the available “sticks”, and the work of Congress increasingly ground to a halt. One of the most obvious victims was the appropriations bills.

Despite the log-jam of the appropriations process, the idea of a government shutdown was generally unpalatable to both parties. Every few years, one party or the other would engage in a shutdown, as each side sought to determine who would be blamed more, but in general, they were short-lived, and involved very short term pain for the economy, the federal employees, and the contractors who are perhaps the biggest victims of these shutdowns, as they do not receive back pay.

Imagine now, if we had provisions that essentially constituted an automatic continuing resolution. There would be zero incentive for the party in opposition to come to any deal. At worst, the government would keep running at the same funding levels as existed currently. That means that Democrats could potentially just sit still and block increased funding at the Department of Defense or additional policy riders on social issues or cuts to healthcare. Similarly, Republicans could refuse cooperation on defense reductions, the elimination of some policy riders, and efforts to increase funding for social programs. This would be the end of the budget and appropriations process, and would hand tremendous political leverage to special interest groups who seek to achieve a narrow set of goals by any means available.

These bills designed to protect federal workers mean well, but would ultimately mean that Congress would be giving in to petty politics and small minorities of ardent activist Members and their supporters. The United States would potentially be looking at the same budget for years on end, as a result of absolute gridlock. It is unfortunate that workers and the economy can be held hostage, but if there are no stakes, then there is no reason for the parties to engage.

Hopefully, Congress has learned its lesson for a while, but these bills preventing a shutdown would remove the pain, and render the lessons learned from a failure to reach a compromise as immaterial.

In general: deadlines work.

Nothing spurs initiative and reasonableness like knowing that Cinderella’s carriage will be turning into a pumpkin in 20 minutes, and the time to get moving is now, lest everyone suddenly see Congress and/or the White House in its knickers and riding around in a pumpkin. That image rarely wins votes.

07/11/2018

The 2018 Midterm Elections -- Midterm Madness with no Clear National Message

Overview
The 2018 midterm elections occurred on November 6th, and despite some expectations of the potential for a “blue wave”, the results were decidedly mixed. Democrats succeeded in reclaiming the reins of power on one branch of the legislature, which will give them a seat at the table, and a check on the power of the Trump administration. Democrats are guaranteed to have a majority of 219-193, with many races yet to be decided. At the same time, Republicans scored major victories in the Senate, and appeared to expand their majority, but at the moment it stands at least at 51-45, with two states that may flip outstanding, and a Democratic pickup also in play. One of the key takeaways of the evening appears to be that Democrats were energized in Democratic areas, but Republicans also were highly motivated in Republican areas. As many predicted, it was a turnout election, with the total number of votes cast easily exceeding the previous midterm – which was itself an exemplar all-time low for voter turnout.

The battleground also extended to governorships and state legislatures, which will play a significant role over the levers of power for state redistricting in two years, as well as the political architecture of state political operations going into the primaries and the general election in 2020.

The changes in Washington beginning when the new Congress is sworn on January 3, 2019 will be massive, and will usher in a new phase of the Trump presidency and the conduct of Congress. Democrats will be in a position to demand compromise. No longer will the debate be between the far right of the Republican Party and the more moderate wing. Pressure will ease on Senate Majority Leader Mitch McConnell (R-KY) to eliminate the legislative filibuster, as it will no longer be the impediment that blocks Republican initiatives. Instead, that hindrance will belong to House Democrats – where a newfound majority rule will make it a new leadership structure to stonewall Republican initiatives. In addition, Senate Majority Leader Mitch McConnell (R-KY) will now have an excuse to ignore the right wing of his party and the most controversial instincts of the Trump administration, and instead seek to compromise with House Democrats – however, it remains to be seen whether or not he will choose to take that path.

The proposition also means some serious questions will need to be determined. Clearly the new generation of Democrats will want to have some say in their own leadership, and there has already been significant discussion of the average age of the current leadership. There will also be a discussion of whether or not to bring back earmarks as a tool in helping to grease the wheels of government. On the one hand it might provide bad optics and talking points for Republicans who portray Democrats as seeking to reinstate corrupt pork-barrel practices. However, the ban has never been popular in the Senate, and there are plenty of Members who would welcome the opportunity to retake the prerogative of Congress to set spending priorities, and take that function out of the hands of the administration.

For his part, the White House managed to stay fairly restrained throughout election night. The administration is likely to spin the results as a vindication and victory for Trump – despite the loss of the House. The line that has begun to percolate from the administration is that President Trump was tremendously effective in Senate races in taking down Democratic candidates in states where he showed up. However, this might be ignoring the damage his rhetoric might have done to the slew of suburban House districts that flipped to Democrats in the election. Regardless of the spin, one thing is certain – the Republican Caucus will become more conservative and more “Trumpian” when the new Congress convenes in January.

House of Representatives
The Democratic takeover of the House marks a sea-change for the Trump administration and for the conduct of Congress. The likely incoming Speaker will almost undoubtedly be Nancy Pelosi (D-CA), as she reclaims the gavel after eight years as Minority Leader. While some of the newer Members of her Caucus have said that they do not plan to support her for Speaker, there is no chance that they risk sitting out the floor vote, and potentially make Congressman Kevin McCarthy (R-CA) the actual Speaker of the House. With no apparent alternative to Pelosi, she appears to be a lock to regain the gavel.

The House will also be significantly more diverse, particularly in the Democratic Caucus. The elections mark the first time 100 women will be in Congress, and also saw the election of the first two Muslim women elected to Congress, the first Native American woman, and the first openly gay governor.

Life for the Trump administration is about to change dramatically. Democrats had already been privately planning at each committee. There were detailed discussion on their oversight priorities would be and how they planned to hit the ground running. Despite some appetite among the core Democratic base to move forward with impeachment proceedings, it is more likely that Democrats lay out an oversight agenda that will aggressively investigate various aspects of the Trump administration. Some of the options for investigation will likely include:
• The Ways and Means Committee, under the leadership of Chairman Richie Neal (D-MA), will likely seek President Trump’s tax returns. While they may not necessarily make them public, the Committee will likely examine the extent that Russian financial interests have invested in Trump enterprises. In addition, scrutiny will likely be levelled at any foreign sources of financing for the Trump Organization.
• The Oversight and Investigations Committee, led by Chairman Elijah Cummings (D-MD) has already requested 64 subpoenas of administration officials during Republican control, and all of those were denied. Those subpoenas will now be granted almost immediately. Likely targets will be Interior Secretary Zinke, former EPA administrator Scott Pruitt, Commerce Secretary Wilbur Ross and his efforts to include citizenship questions on the decennial census, and dozens of others.
• The House Financial Services Committee, under the direction of incoming Chairwoman (and frequent Trump target) Maxine Waters (D-CA), with an agenda of investigating any number of contacts between the administration and various banks, as well as rollbacks of Dodd-Frank rules.
• The Energy and Commerce Committee, led by Chairman Frank Pallone (D-NJ), who is likely to engage in a wide ranging series of investigations including efforts to sabotage the ACA, examinations of the FCC decision on net neutrality, and any number of environmental regulatory roll backs.
• The Judiciary Committee, led by Chairman Jerry Nadler (D-NY) will likely focus on the Mueller investigation and preserving its integrity and impartiality, and may also look into immigration programs undertaken by the administration. While unlikely to focus on Kavanaugh specifically, the Committee could also decide to examine instances where administration officials may have lied to Congress.
• The Intelligence Committee will be led by Chairman Adam Schiff (D-CA), and will also be focused on the Mueller investigation, and may also take a much closer look at Russian election meddling.
• The Education and Workforce Committee, led by Chairman Bobby Scott (D-VA) may take a much harder look at school shootings, as well as moves by the Education Department to assist for profit colleges and help student loan financers.
• There are a host of committees that will undoubtedly conduct rigorous oversight, including Homeland Security and Governmental Affairs (oversight on border security and detention of minors, as well as election integrity); the Science Committee (climate science denial); Veterans Affairs (the informal cabal of advisors from Mar a Lago); and Armed Services (use of military assets along the border, as well as arms sales).

Democrats made pickups in races they were favored to win in:
• AZ-2 – Ann Kirkpatrick (D) defeated Lea Marquez Peterson (R) in an open seat
• CO-6 – Jason Crow (D) defeated incumbent Congressman Mike Coffman (R)
• FL-27 – Donna Shalala (D) defeated Maria Elvira Salazar (R) in an open seat
• IA-1 – Abby Finkenauer (D) defeated incumbent Congressman Rod Blum (R)
• IL-6 – Sean Casten (D) defeated incumbent Congressman Peter Roskam (R)
• KS-3 – Sharice Davids (D) defeated incumbent Congressman Kevin Yoder (R)
• MI-11 – Haley Stevens (D) defeated (Lena Epstein (R) in an open seat
• MN-2 – Angie Craig (D) defeated incumbent Congressman Jason Lewis (R)
• MN-3 – Dean Phillips (D) defeated incumbent Congressman Erik Paulsen (R)
• NJ-2 – Jeff Van Drew (D) defeated Seth Grossman (R) in an open seat
• NJ-11 – Mikie Sherill (D) defeated Jay Webber (R) in an open seat
• PA-6 – Chrissy Houlahan (D) defeated Greg McCauley (R) in a new district
• PA-7 – Susan Wild (D) defeated Marty Nothstein (R) in a new district
• PA-17 – incumbent Rep. Conor Lamb (D) defeated incumbent Congressman Keith Rothfus (R)
• VA-10 – Jennifer Wexton (D) defeated incumbent Congresswoman Barbara Comstock (R)

Democrats made pickups in tossup districts in:
• FL-26 – Debbie Murcasel-Powell (D) defeated incumbent Congressman Carlos Curbelo (R)
• IA-3 – Cindy Axne (D) defeated incumbent Congressman David Young (R)
• IL-14 – Lauren Underwood (D) defeated incumbent Congressman Randy Hultgren (R)
• NJ-7 – Tom Malinowski (D) defeated incumbent Congressman Leonard Lance (R)
• NY-19 – Antonio Delgado (D) defeated incumbent Congressman John Faso (R)
• TX-7 – Lizzie Pannil l Fletcher (D) defeated incumbent Congressman John Culberson (R)
• TX-32 – Colin Allred (D) defeated incumbent Congressman Pete Sessions (R)
• VA-2 – Elaine Luria (D) defeated incumbent Congressman Scott Taylor (R)
• VA-7 – Abigail Spanberger (D) defeated incumbent Congressman Dave Brat (R)

In Republican Favored Districts, Democrats made pickups in:
• NY-11 – Max Rose (D) defeated incumbent Congressman Dan Donovan (R)
• SC-1 – Joe Cunningham (D) defeated Katie Arrington (R) in an open seat

There are still 23 races that have not been called. Of those, 9 have Democrats in the lead, with all nine being in the lean Democrat or tossup categories. 14 races show Republicans in the lead, with all fourteen being in the tossup or lean Republican category. If the currently uncalled races are called as they currently stand, Democrats would pick up an additional 8 seats. If Republicans were to win all the races in which they are in the lead, they would pickup only one seat.

United States Senate
The Senate was a bright spot for Republicans, but not quite as bright as if they had hoped if they had been asked about their prospects two years ago. At that time, Republicans were salivating over the political map, with Democrats having to defend 22 seats, many of which were states that Trump won in 2016. Republicans began the night with a 52-48 seat majority in the Senate (including independents that caucus with Democrats). Republicans had initially hoped to vastly expand their majority, targeting states that Trump won, including Florida, Indiana, West Virginia, Montana, North Dakota, Missouri, Pennsylvania, Ohio, Michigan, Minnesota, and Wisconsin. Instead of a massive playing field, the GOP found themselves having to basically abandon races in Ohio, Pennsylvania, Wisconsin, and Michigan, as the Democratic candidates appeared completely unthreatened in those races. They turned their focus on the smaller remaining group, but also found themselves potentially defending in areas where they already held the seats – including Texas, Arizona, Tennessee, and Nevada. This new playing field seemed to be tilting in favor of Democrats based on pre-election polling, but the uncertain composition of the “likely voter” cohort made any predictions a white-knuckle proposition for both parties.

Ultimately, Republicans prevailed in the Senate, picking up seats to add to their majority. Republicans are guaranteed to have at least 51 seats, but the remainder are still up for grabs – though Republicans appear to have a decided edge in the vote counting. They managed to pick off vulnerable Democratic incumbents in deep red Trump states in North Dakota (Heidi Heitkamp), Missouri (Claire McCaskill), and Indiana (Joe Donnelly).

In addition, Republicans were able to pursue challenges in Tennessee (Congresswoman Marsha Blackburn won fairly easily) , and in Texas, where Senator Ted Cruz (R) was able to hold off a strong challenge from Congressman Beto O’Rourke, who came within 3 points in a state where Democrats generally lose by 20 points or more.

In another twist on the night, though not an unexpected one, Mississippi will find itself in a runoff 5 days after Thanksgiving due to the law requiring a candidate to win at least 50% of the vote to be seated. Mississippi had two contests, with one to reelect Senator Roger Wicker (R), who won easily, and the other to replace Senator Thad Cochran (R), which was a three-way contest. That race saw former Agriculture Secretary Mike Espy (D) win 40.6% of the vote, and Cindy Hyde-Smith (R) win 41.5% of the vote, with the remainder mostly going to another Republican. This contest will be decided at the end of the month in a runoff election that may be volatile with a special election with notoriously low and volatile turnout.

However, the news was not all rosy for Republicans, as they largely lost their bids to unseat several Democrats in states that Trump won, or where they sought to hold Senate seats in states where they had an obvious advantage.

• West Virginia - In West Virginia, Senator Joe Manchin (D) won handily in a state that Trump won by 42 points.

• Nevada - Republicans also lost a seat when Jacky Rosen (D) beat out incumbent Senator Dean Heller (R) in Nevada, which Republicans had been desperate to hold in the face of mounting problems over Heller’s votes against the ACA and confusing message.

• Montana - Republicans are also looking to pick up another seat in Montana, where Jon Tester is in a close contest with Matt Rosendale (D). Tester is currently down around 3,000 votes in the sparsely populated state, with another 18% of precincts yet to report. Tester is also a frequent target of President Trump, who seems to portray a personal grudge against Tester for not being more amenable to the administration agenda.

• Arizona - Democrats are still competing for the open seat in Arizona to replace retiring Senator Jeff Flake (R), with Congresswoman Kyrsten Sinema (D) competing against Congresswoman Martha McSally (R). The margin in the race is razor thin, and the opportunity for Democrats to pick up the seat is an opportunity that could blunt the damage and messaging arising from their 3-4 potential losses.

• Florida - Finally, there is one outstanding race that seems to be favoring Republicans, where incumbent Senator Bill Nelson (D) appears to be trailing Governor Rick Scott (R) by around one point, which could trigger a state-wide recount if the margin falls to less than one point with a handful of precincts outstanding. This could be the place where, once again, Democrats bring their hopes to die.

The modest growth of the Republican majority in the Senate will not have a particularly profound effect on the conduct of Congress, other than to allow additional Republican dissent on particularly partisan bills. The House in control of Democrats will necessitate compromise if there is a genuine desire to pass any legislation, and the lack of a filibuster-proof Republican majority leaves things in the same place as they existed previously. One possible consequence is a change in committee ratios that might give Republicans an extra seat on some committees, or eliminating one Democratic seat. The ability of Republicans to move nominations to the cabinet and federal judges will be unimpeded, as the filibuster rule has been eliminated for all nominations. A question remains is whether or not the Senate will renew the practice of earmarking appropriations funds. The ban on earmarks was always driven by the House, and Majority Leader Mitch McConnell (R) was a prolific earmarker in his day. Accordingly, if the House takes the lead, it is possible that the Senate will “reluctantly” acquiesce and resume the practice in order to refrain from being left out of the process.

State Ballot Initiatives
Several states had ballot initiatives that would have a significant policy impact in their states, as well as a political impact for future elections. Some examples include:

• Florida voted to restore voting rights to over one million former felons, which will likely have a significant impact on the electorate in the 2020 election.

• Arkansas voted to increase their minimum wage to $11.00 per hour, phased in through 2021.

• Missouri voted to increase its minimum wage to $12.00 per hour, phased in over 4 years.

• In an effort to reduce the impact of gerrymandering, Colorado, Michigan and Utah all voted to conduct future redistricting by an independent commission, rather than through a political process.

• Medicaid expansion was also on the ballot in several states, and passed in Idaho, Nebraska, and Utah. Each state passed the ballot initiative.

Governors
Governorships also saw some changes, as was expected, with Democrats picking up a handful of seats, and Republicans holding a number of states -- but adding no new territory. Democrats will now take the helm in:

• Kansas
• Maine
• Wisconsin
• Michigan
• Illinois
• New Mexico
• Nevada

Georgia - Democrats are also hoping to force a recount in Georgia, if Brian Kemp (R) falls below 50% and a runoff is forced with Stacey Abrams (D). Under state law a runoff is forced if no candidate achieves 50% of the vote – Kemp currently sits at 50.7%

Florida - Republicans picked up no Governorships, but did manage to net one big win, when Ron DeSantis (R) defeated Andrew Gillum (D) in Florida, where Gillum appeared to have strong momentum based on recent polling.

Lame Duck Session
The lame duck session of Congress is now rapidly approaching. The session will convene on Tuesday, November 13th. There is no guarantee as to what will happen, but a significant amount of political jockeying will occur between then and the time that the new Congress is sworn into office on January 3rd.

The main question is whether the lame duck session will be utilized as an opportunity to conclude routine business to fund the government; an opportunity to put down political markers on hot-button issues like the border wall and immigration; or a chance to jam through policies that enjoy support amongst Republicans, but would never proceed under regular order. While it is too early to know the answer, there is a menu of options that could be on the table.

Republicans will undoubtedly press forward with their list of pending confirmations – both judicial appointments and appointments to executive agencies. The certainty of Republican control of the Senate removes some pressure from the need to address those appointments in the lame duck session, as there is no longer any concern that they might be blocked by Democrats. On the list of nominees are 36 federal district court and three circuit court judges. There is also the question of funding the remainder of government, but with HHS, Defense, and the VA already funded, it is possible that the President could push for a government shutdown in a demand over funding for the border wall while Homeland Security still requires funding. However, now that Democrats are certain of their control over the House, it is unclear if the administration truly has any leverage with which they might force action from the caucus.

The other option is that both sides will seek to quickly dispose of the remaining “must do” items, and either pass the bills or a longer term continuing resolution to head home for the holidays and punt decisions to a later date.

Implications for the Administration
The Trump administration appears to have been planning for the obvious eventuality of a Republican Senate and a Democratic House for some time. However, it is unclear what form this planning will take. Under one possible scenario, the President would seek to work with Democrats to craft a significant bipartisan agreement on issues like immigration, infrastructure, and possibly even healthcare. Despite the possibilities for the administration to begin working with a Democratic House, there are still a number of issues that could create a political roadblock to any attempts at bipartisanship. These could include issues on voter suppression, entitlement cuts, new tax cuts, threats to healthcare protections, and a number of other problems.

Aside from clear opposition to administration policies on immigration, family separation, tariffs, Russian sanctions, and many more, one area where Democrats and the administration might come together would be an infrastructure plan. It remains to be seen whether Democrats would be willing to work with Trump and give him a “victory”, and whether Republicans would be willing to sanction a bill that clearly increased the deficit without offsets.

One other consideration that could dramatically impact how Congress moves forward would be any effort to fire Attorney General Jeff Sessions. Other turnover issues include if James Mattis retires; if Mueller issues his report without notice or preamble – or if any other number of other scandals occur – everything is outside the window, as President Trump has spent a career rewriting the script of domestic politics.

However, no matter the decisions he makes regarding how his policies and messaging will proceed, they will now be subject to oversight from a Democratic House that will be in a far different position when it comes to conducting oversight of the administration and its initiatives.

05/10/2018

A Broken Process, a Broken Electorate – Let’s Stop

On the issue of the confirmation of Judge Kavanaugh to be the next Associate Justice on the U.S. Supreme Court, it really doesn’t matter where you come down politically, we should all be able to agree on at least one thing – this process is broken, and isn’t good for the country.

The process has been broken for quite some time, but this time seems particularly fraught with perils for the Republic and the comity we should feel towards our fellow Americans. Maybe it is the prevalence of social media, and maybe it is the moment in America. However, those are only some of the factors creating the dynamics around this contentious vote. Politics certainly lies at the heart, with the culture war being played out in the Court, as it has been for decades. Nobody should be particularly surprised when politics breaks out in the Congress, but that is why the institution formerly incorporated procedural safeguards to prevent the worst (and dumbest) of abuses.

This time is different. It isn’t just the fact that this vote on the Court will potentially impact the partisan leanings, and decades of rulings that many in the country have come to believe are sacrosanct. We have been there before, or at least felt like it. It is partially the fact that some women, and sexual assault survivors in particular, feel that the credible accusations of sexual assault are disqualifying for service on the High Court and that a greater standard of acceptable behavior is required. Opposition is also process driven, which has been highlighted ad nauseam.

The process has been undeniably truncated due to partisan politics by Republicans who desperately wanted a smooth confirmation, and as a result of their maneuvering, managed to generate more controversy and lack of faith in the process than ever before. That process yielded an unprecedented spectacle of the heartbreaking testimony of a credible witness, and the tearful, angry, and vengeful response of the nominee – followed by another unprecedented op-ed that then disavowed the very emotion that he had scripted into his own written testimony. This yielded a reopened FBI investigation, which was again politically managed, and decried by one side, and used as a political fig-leaf by the other. It is no wonder that both sides are mired in a vapor-lock of grievance and accusation impugning the other side.

The lack of faith in the process is justified. It was apparent to anyone being intellectually honest. That lack of faith spread throughout the general public, and eventually to the Senate itself, including the majority. The declarations of “fairness” and “openness” are exemplary of exactly the style of politics that yields approval ratings around 17%. People know when someone is telling them a moderately plausible lie, but a lie nonetheless. That vaunted “authenticity” that each politician strives for is invariably destroyed when they say things that they know might be true, but undoubtedly are false.

This is not how it is supposed to be. It doesn’t matter who started it or how. It can be traced to Bork; or Clarence Thomas; or Republican opposition to the nomination of Obama’s federal judges; or Harry Reid’s decision to eliminate the filibuster for all nominations other than the Supreme Court; or Mitch McConnell’s decision to block the nomination of Merrick Garland for almost an entire year; or his decision to extend the elimination of the filibuster to the Supreme Court. The first two inciting incidents may have stemmed from genuine concern for the integrity of the Court (though, I would note that one of the two made it through), but the rest devolved into the worst kind of political expediency and naked power grabs.

Let’s stop.

I submit to Senators that are agonizing over the decision of whether or not to vote for Kavanaugh: You shouldn’t.

If you are conflicted and struggling: You are doing it wrong.

This isn’t supposed to be a difficult decision. It is supposed to be easy. The Supreme Court was never intended as a political forum to impose ideology through a small group of jurists. If anything, it was meant to be even more the “cooling saucer” than was originally intended for the Senate. It was designed to protect liberty, and prevent the Legislative Branch from running amok in manners contrary to the Constitution.

The Supreme Court is a body that is supposed to be chosen from the mainstream. It is supposed to be insulated from the politics of the moment. Nominees should be by consensus, and they certainly shouldn’t tear the fabric of the body politic in two.

This is not to say that everyone needs to be happy with every nominee. In a perfect world, they should be a middle-of-the road consensus that does not ideologically excite anyone on either side. Nominees should be boring. Republicans didn’t like Kagan or Sotomayor on an ideological basis, but they were boring and not objectionable. Democrats didn’t care for the judicial philosophy of Roberts, Alito, or Gorsuch, but they were sufficiently boring to reach the court with fairly widespread support.

Eliminating the 60 vote threshold and turning Supreme Court nominations into a purely ideological pursuit will inevitably corrupt the process. The process will be curtailed. Less than forthcoming answers will, of course, become the norm. Untruths will be overlooked. Opposition will be overblown. The process will be hyper-partisan.

This is not how the process was ever meant to function, and the Republic is weaker for the change.

I suggest this to Senators who are agonizing over approving Kavanaugh: If you are agonizing, then you have the wrong candidate.

Stop. Start over. Find someone who won’t cause this level of controversy and pain among such a significant portion of the population. You may find that result to be unfair to Brett Kavanaugh, but, in all frankness, that isn’t terribly important. He will be fine. He will still be a judge and a Yale Law School Graduate in America. He isn’t trading places with too many people anywhere in the country. Being an Associate Justice for life on the Supreme Court isn’t a right, it is a privilege. Sometimes life isn’t fair. However, his ambition and the power politics that have come to dominate the conversation around the Supreme Court are not more important than the credibility of the Supreme Court, the faith people have in the justice it delivers, and the pain this political process is causing to so many Americans.

Slow down.

Don’t allow the political wisdom and the gravity of supposed inexorability to inflict a moment that could cause great harm to the Republic. Take a breath. Start over. Get a new nominee. Ensure a fair and lengthy process if necessary, and restore confidence in the Senate and the Court.

And, if they don’t do it this time, the next Senate Majority should still restore full filibuster rights to the minority party, and take the higher road in putting the country back on a temperate track towards the future. Failure to do otherwise endangers the future of the Republic, and the faith of the American people.

However, it would be much more preferable to get it right this time, and before more permanent damage is done.