The Briefing 04-03-17

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This is the big week in Washington--the Supreme Court, the Senate, Neil Gorsuch, & the nuclear option.

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Is the Senate filibuster itself a constitutional problem?

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The NCAA plays hardball with North Carolina, becomes enforcer for LGBTQ demands.

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Basketball over bathrooms -- this is how a revolution in morality is coerced.

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Transcript

The Briefing

April 3, 2017

This is a rush transcript. This copy may not be in its final form and may be updated.

It’s Monday, April 3, 2017. I’m Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.

This is the big week in Washington--the Supreme Court, the Senate, Neil Gorsuch, & the nuclear option.

All eyes will rightly be on Washington D.C. this week as we go into the final, climactic days of the nomination and confirmation of Judge Neil Gorsuch as the next Justice of the United States Supreme Court. The stage for what has turned out to be an epic political battle, deeply revealing of the partisan and worldview divide in the United States, was set with the death last year of Justice Antonin Scalia. In the aftermath of Justice Scalia’s death, then-President Barack Obama named another judge, Judge Merrick Garland, to the Supreme Court seat. The United States Senate, claiming in terms of the Republican majority that a sitting President should not make such a contentious nomination in the very months of the next presidential election, deferred action, and that set the stage for President Trump to make his nomination of Judge Neil Gorsuch just a matter of weeks ago.

Since then we have followed in Washington the unfolding controversy. It has followed all of the traditional patterns of the Supreme Court nomination, but with an added twist. There is no doubt of the importance of this particular seat. Justice Scalia was the anchor of the conservative majority, a very narrow majority, a 5-4 majority on the Supreme Court. Thus, Democrats expecting the election of Hillary Clinton saw themselves as in a win-win situation. They would either confirm Judge Garland or they would wait for a presumably even more liberal candidate coming from what they expected to be the administration of Hillary Clinton. Instead, Donald Trump was elected in November, and Republicans held on to their elected majorities in both the House and the Senate. The key issue here, of course, is the Senate, because it’s the Senate’s constitutional responsibility of advice and consent that requires a majority of senators to confirm many federal nominations, most particularly federal judges, and of course the most important of those justices of the United States Supreme Court.

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As the Associated Press reporters Erica Werner and Mary Clare Jalonick reported,

“The Senate is headed for a tense showdown over President Donald Trump’s Supreme Court nominee that could have far-reaching consequences for Congress, the high court and the nation.”

The reporters go on to explain why there is particular drama in terms of this nomination. They write,

“Majority Leader Mitch McConnell and his Republicans are determined to confirm Judge Neil Gorsuch within the week. But to do so, they will likely have to override Democratic objections and unilaterally change Senate rules so that Gorsuch can be confirmed with a simple majority in the 100-seat chamber, instead of the 60-voter threshold.”

They go on to say,

“Though it may seem arcane, the approach is known on Capitol Hill as the ‘nuclear option,’ because it strikes at the heart of the Senate’s traditions of bipartisanship and collegiality.”

They rightly then say,

“It would allow all future Supreme Court nominees to be confirmed without regard to the objections of the minority party. And senators of both parties say that proceeding with the rules change could ultimately lead to complete elimination of the minority party’s ability to block legislation via filibuster, one of the few remaining mechanisms that force bipartisan cooperation in Congress.”

Now there’s a great deal in those paragraphs. All of it requires some very careful unpacking. First of all, the filibuster. Where did it come from? The filibuster is not found in the Constitution. And of course it’s not in the rules of the House of Representatives. It exists only in the Senate, and it came about in a period early in the 20th century of basic political centrism. The presenting issue that brought about the filibuster wasn’t a matter of social or domestic policy, but rather, effectively, military and foreign policy. It was the looming reality of World War I. The Senate at that time adopted its own rules binding in terms of its proceedings not found in the Constitution, but both houses of Congress are given the ability to adopt to their own rules.

The filibuster rule first adopted by senators on March 8 of 1917—George Will notes that’s 29 days before Congress declared war on Germany—required a two-thirds vote in terms of the 100 current seats in the United States Senate. That means that 60 Senators, both Republicans and Democrats in the current Senate, must vote for any measure to reach the floor, and that’s before the actual vote is taken. So a vote for cloture, as it’s known—that is a vote to bring a matter to the floor—requires 60 votes. It then might pass or it might fail, but it takes a super majority even to get to the vote.

The filibuster has been controversial from the start. It requires not only debate, but it also requires a debate about whether the Senate will debate. That means that the Senate can effectively avoid dealing with any number of difficult issues unless there are 60 Senators who even want to have the debate. So just to keep matters straight, a filibuster rule sets the stage for not the debate so much as the debate about the debate. And that’s where many Americans think they have seen the filibuster in action, and, well, they may have.

Back in 1917 in order to avoid a matter getting to the floor, senators would simply filibuster. That is, they would get up and give very long floor speeches until time had run out and the matter could not get to the Senate floor. But all that was changed in 1970 and in 1975 when the Democratic majority in the Senate then made it such that the Senate could have a two-track system. Now why is that important? It’s important because under the original filibuster, the Senate couldn’t get to any other matter. Only one issue could be on the floor at a time, and the filibuster would tie up the Senate, potentially for days or even weeks or even theoretically months. But in the 1970s, the Democratic majority changed the rules to make it such that with a majority vote for the Senate to move on, the filibuster could effectively continue, but only in theory, even as the Senate moved on to other matters. Now that also poses even graver constitutional questions, because now the Senate could effectively decide to kill legislation without even having the debate slowdown the senate, much less stop it, until it could go on to further matters. The filibuster then became a very anti-majoritarian measure.

Generally speaking, the most controversial applications of the filibuster have had to do with the Senate’s confirmation of presidential nominees and most controversial among those, judicial nominees. Here is a very important point for us to keep in mind as we watch Washington this week. In the history of the United States Senate, even since the filibuster was adopted in 1917, there has never been a partisan filibuster of a president’s nomination to the United States Supreme Court. There was, to be sure, one filibuster before. That came in 1968 when President Lyndon Johnson nominated Abe Fortas to the nation’s highest court. But that was not a partisan filibuster. It was not merely Democrats on one side and Republicans on the other. Instead, it was bipartisan, and for good reason. It turned out that the candidate, the nominee in this case, was very compromised in terms of political corruption.

This is indeed how the context now arives at this week. As the editors of the Wall Street Journal wrote in the weekend,

“Minority Leader Chuck Schumer’s strategy is transparent: Stage-manage an unprecedented filibuster against Judge Gorsuch, and then portray Republicans as radicals if they change Senate rules to break it. The gambit is to coax at least three of the 52 GOP Senators to cut a deal with Democrats that hands the minority political leverage over President Trump’s judicial nominees.”

They went on to say,

“Mr. Schumer and other Democrats are trying to lure those Republicans into a deal by preaching a false institutionalism that claims to be acting for the good of the Senate. They want to scare the GOP into believing that breaking a filibuster would somehow break the Senate as a deliberative body that requires 60 votes and bipartisan consensus to act.”

That is exactly what we are likely to see in terms of the Senate this week. It’s all going to come down tomorrow to the judiciary committee, the United States Senate, voting to send on Judge Gorsuch’s confirmation to the full Senate, and then over the next four days, we’re going to see a battle royal in the United States Senate. And as just about everyone understands, there is indeed a great deal at stake. That’s because there is so much at stake in every nomination to the nation’s highest court. That, particularly, since the Court itself has become so politicized, and since it has taken up responsibility to deal with so many of the most divisive issues confronting America.

But we also note that it is important to consider the history of the filibuster. It has been constitutionally suspect from the beginning. It’s one thing for filibusters to be applied to spending bills, matters of taxation, and other forms of national policy. But when it comes to presidential nominees, this is a particularly suspect rule.

And the editors of the Wall Street Journal are absolutely right. It was Democrats who effectively set the rules in place in its modern form in the 1970s. It was Democrats who changed it in 2013 frustrated that the Republican minority then was blocking certain nominations of President Barack Obama, and now they are threatening an absolute collapse of the Senate if Republicans go on and extend the Democrats’ own logic to removing the filibuster when it comes to the President’s nominees to the United States Supreme Court.

Here’s where we also have to understand that if the Republicans do not follow through in changing this rule, if the Democrats force it, then the Republican majority in the Senate will basically be giving to the Democrats, whether that party’s in the majority or the minority, the absolute veto power over any Republican president making a nomination to the nation’s highest court.

Why is that so? It is because the Democratic Party, now so far ideologically to the left, will oppose any conservative nominee claiming that they are constitutional extremists. Just to put the matter very plainly, if you can paint Judge Neil Gorsuch as some kind of extremist, then your own extremism is what is actually revealed. Going back even before Judge Gorsuch’s confirmation hearings in recent days, leading Democratic senators, including the Democratic leader Senator Schumer, were demanding a mainstream candidate. And of course what we came to understand is that their definition of mainstream meant someone who was predictably progressive and liberal when it comes to interpreting the Constitution of the United States.

 

Is the Senate filibuster itself a constitutional problem?

In an editorial comment published in the Washington Post over the weekend, George Will gets right to the issue suggesting that now is the time to end the filibuster’s power of obstruction. Now when you think about the filibuster, again we need at least to make a very crucial distinction, that’s between the filibuster as applied to reaching legislation and the filibuster as applied to presidential nominees, in particular federal judges. Just about everyone on both sides of the political aisle recognizes that changing the rules in terms of what’s called the nuclear option would be a very important and historic step. That step was first taken by Democrats in 2013. This, if it happens this week under Republican control, would be the other shoe dropping.

This is where we need some basic constitutional wisdom. And in this case, George F. Will is absolutely right. The filibuster when applied to presidential nominations upsets the constitutional balance of power. It effectively gives to a minority in the United States Senate an absolute veto power over nominations made by any President. Just consider this, as Will makes the case convincingly, if the American people elect a president of a particular party and then they elect a Senate majority of the same party, we can rest assured that the people have spoken that they intend for that president’s nominees, unless there is some basic moral or professional disqualification, to be confirmed by the United States Senate. We do all understand what’s at stake here. And if indeed the Democrats force a filibuster in terms of the nomination of Judge Neil Gorsuch to the Supreme Court, it would be the first partisan filibuster in the history of the United States. And if we are to maintain our constitutional balance, it must be not only tragically the first, but necessarily the last.

The NCAA plays hardball with North Carolina, becomes enforcer for LGBTQ demands.

Next, we shift to the state of North Carolina where as we went into the weekend big headlines erupted. As Valerie Bauerlein and Jon Kamp reported for the Wall Street Journal,

“North Carolina lawmakers agreed Thursday to a compromise bill that dials back a controversial bathroom law, an attempt to reverse a tide of businesses and sports events leaving the state because of a policy they considered discriminatory.”

The reporters went on to tell us that the North Carolina Senate “voted 32-16 to undo the year-old law known as House Bill 2 requiring transgender people to use the public-facility bathroom associated with the sex listed on their birth certificate. The House later backed the Senate with a 70-48 vote. Democratic Gov. Roy Cooper signed the changes into law Thursday afternoon.”

Now what that report in the Wall Street Journal tells us is that this was done in a hurry. It also signals that it was a compromise. And as the news reports after the signing of the bill on Thursday indicated, neither side in this controversy is very happy with what is admittedly a compromise. And the compromise came, politically and economically, speaking at the point of a gun. Major organizations, most pointedly the N.C.A.A. and the Atlantic Coast Conference, had pulled sporting events, most specifically collegiate basketball postseason events, from the state of North Carolina in protest of the bill, and some businesses indicated that they were going to cancel plans for investment in North Carolina also because of the bill.

Just about everyone wants to look more closely at the compromise. The compromise comes down to this: the State did rescind House Bill 2. It rescinded any language saying where transgender persons must go to the bathroom, but it reserved for the state legislature and not to lesser governmental authorities the right to determine that kind of policy. But remember, there is no statement of such a policy in the law as passed on Thursday. The law also forbids state and county governments from adopting their own LGBT rights legislation, at least until December 2020. The legislators and the Governor agreed on that date because, in their words, they said that by then the federal courts will likely have sorted and settled the issues, thereby relieving the legislature and the Governor of the state of North Carolina from coming to any such determination.

Let’s just remind ourselves that the law known as House Bill 2, sometimes called the bathroom law, of North Carolina, was adopted last year. And that law in any previous period in American history would have been a) unnecessary and b) absolutely noncontroversial. But of course it’s very controversial today on the other side of the LGBT revolution. The very same year that the North Carolina government adopted this policy—that was just last year—the Obama Administration handed down a federal policy through the Departments of Education and Justice mandating that all schools, public schools all the way from kindergarten up through the state’s universities, must acknowledge the rights of persons to declare their own gender identity and recognize that in terms of access to bathrooms and sex identified facilities, including locker room showers and all the rest.

It’s really significant in terms of the moral revolution to note that in the North Carolina legislature in both chambers Republicans hold what’s called a super majority. That is, they hold a majority so large that minority cannot block any legislation. And what that tells us is that the pressure brought upon legislators there in North Carolina was so massive that even a significant number of Republicans joined in the majority to rescind this legislation. And we also note that it was a compromise in order to get conservative Republicans who had backed House Bill 2 to turn around and back its rescinding in terms of the compromise that was adopted on Thursday. It had to avoid stating the opposite of the policy.

But immediately after the law was signed into effect by a Democratic governor elected at least in part because of his opposition to House Bill 2, LGBTQ groups immediately said that they were dissatisfied with the compromise, and they called upon the NCAA, the ACC, and major corporations to continue to boycott North Carolina. All that tells us that even in rescinding House Bill 2, the state of North Carolina still finds itself at the center of a target of LGBTQ groups. Gay-rights groups immediately pounced upon the legislation. Equality North Carolina Executive Director Chris Sgro said,

“It doesn’t matter if you are a Democrat or a Republican, if you vote for this bill, you are not a friend of the LGBT community. You are not standing on the right side of the moral arc of history or with the civil rights community.”

So there you have it. This law does not go far enough in order to meet the demands of the LGBT revolutionaries. They actually turned on the Democratic Governor, and the Democrats in the legislature brought about this compromise to rescind House Bill 2.

Basketball over bathrooms -- this is how a revolution in morality is coerced.

But also in terms of what we learn about the moral revolution and the worldview impact of this story, the most interesting account of this legislation that was adopted Thursday in North Carolina came not on the news pages of any paper but on the sports pages of the New York Times. Marc Tracy wrote an article with the headline,

“Basketball’s Outsize Role in Repeal of Bathroom Bill.”

Tracy began his article by describing what can only be a humiliation for North Carolina in terms of basketball when Duke and North Carolina had to play each other, not in North Carolina, but rather because of the decision of the NCAA to boycott North Carolina, the game had to be held in Greenville, South Carolina. Tracy then explains, and I quote,

“The pain inflicted by sports officials — the N.B.A. also withdrew the All-Star Game from Charlotte — had intensified, and was about to get worse. The N.C.A.A. recently announced that this week it would begin to make decisions on where to hold championship events through 2022.”

Mac McCorkle, a former state Democratic consultant, now a professor of public policy at Duke University said,

“I think the N.C.A.A’s view had become a barometer for people judging the economic development impact. It locked in people’s view that this is a mess, and the way we would know the mess had cleared up is the N.C.A.A.”

Tracy also makes clear that major basketball coaches said that the State needed to repeal the law and get on with business, meaning basketball. North Carolina, of course, will be playing Gonzaga University in the final championship game of the N.C.A.A. men’s basketball tournament tonight. But one of the things we need here to note is that the week before the North Carolina legislature rescinded House Bill 2, the NCAA had sent an unmistakable warning.

As Ray Glier of the New York Times reported on the 18th of March,

“The N.C.A.A. president, Mark Emmert, said Friday that the organization was standing behind the firm position it has staked out on anti-discrimination protections for athletes and fans, a decision that led it to bar North Carolina from hosting N.C.A.A. championship events like this week’s men’s basketball tournament.”

Glier went on to report,

“Emmert was in Greenville on Friday, in fact, only because the N.C.A.A. had moved a set of first- and second-round games out of Greensboro, N.C., last year in response to a contentious state law that curbed anti-discrimination protections for lesbian, gay, bisexual and transgender people.”

In his statement on March 17 Emmert said,

“We have stated very clearly our views and values. I fully expect the board and I will act accordingly. To presuppose what any state is going to do is presumptuous, and we’ll wait and see what happens there or anywhere else.”

Now add the fact that the N.C.A.A. announced that in coming days it’s going to make decisions about locations for postseason play all the way through the year 2022, and you can see exactly how powerful coercion was brought against the government of North Carolina, even as everyone knew it was deliberating what to do with House Bill 2.

So the lesson from this is that everything is now politicized, including intercollegiate athletics and in particular the N.C.A.A. Tracy’s article in the New York Times last Friday noted the fact that the N.C.A.A. is caught in a rather difficult and ironic situation. It is a voluntary organization made up of universities and colleges, some of which hold to convictional policies, in particular many Christian colleges and universities, that are directly at odds with the decision that is staked out by the N.C.A.A., which to say the very least, has decided it will take sides in terms of this cultural and moral controversy.

But finally this particular chapter in our unfolding moral revolution points to the fact that the revolutionaries will use every tool at their disposal far beyond the traditional mechanisms of politics and economics. In this case, the threat they brought against the state of North Carolina was perhaps the most painful threat of all, the threat of removing even to the year 2022 all postseason basketball intercollegiate play. In effect, the compromise as it was adopted last Thursday in North Carolina means that a majority in the government there believed in the importance of basketball over bathrooms. That tells us a very great deal.

Dr. Mohler recording The Briefing