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National Politics|By Charlie Cook, April 11, 2017
This story was originally published on nationaljournal.com on April 7, 2017

For those of us who revere Con­gress and, in my case, par­tic­u­larly the Sen­ate, hav­ing first worked there as an in­tern 44 years ago, these are sad times. Par­tis­an­ship is strangling what was long a func­tion­ing and ef­fect­ive in­sti­tu­tion, whose slow pace was in keep­ing with its claim to be the world’s greatest de­lib­er­at­ive body. Re­pub­lic­ans ac­ted shame­fully last year by re­fus­ing to act on Judge Mer­rick Gar­land, Pres­id­ent Obama’s choice to fill the va­cancy on the Su­preme Court left by the death of Justice Ant­on­in Scalia. Now, Demo­crats’ treat­ment of Judge Neil Gor­such, Pres­id­ent Trump’s nom­in­ee for that same Su­preme Court slot, is equally shame­ful. Both men are em­in­ently qual­i­fied and do not de­serve to be whip­ping boys for the ugly par­tis­an­ship that has poisoned Cap­it­ol Hill.

The Re­pub­lic­an ar­gu­ment that Obama should not be al­lowed to nom­in­ate a Su­preme Court justice in the last year of a pres­id­en­tial term flies in the face of the his­tor­ic­al re­cord: Six justices have been nom­in­ated and con­firmed in pres­id­en­tial elec­tion years since 1912. The Demo­crat­ic jus­ti­fic­a­tion for not sup­ply­ing eight votes to reach 60 and end a fili­buster of Gor­such—that he doesn’t have 60 votes for con­firm­a­tion—is even more spe­cious. Justices Clar­ence To­mas and Samuel Alito, after all, were con­firmed with few­er than 60 votes.

What is un­for­tu­nate is that the ig­no­miny over the Su­preme Court comes on the heels of one of the Sen­ate’s finest mo­ments in re­cent years. The news con­fer­ence a week ago about pur­por­ted Rus­si­an med­dling in the pres­id­en­tial elec­tion, held by Sen­ate In­tel­li­gence Com­mit­tee Chair­man Richard Burr, Re­pub­lic­an of North Car­o­lina, and the rank­ing Demo­crat, Mark Warner of Vir­gin­ia, was a mod­el of col­legi­al­ity, in­teg­rity, and class. It’s sad that their bi­par­tis­an co­oper­a­tion is now over­shad­owed by the Demo­crat­ic fili­buster of Gor­such and the Re­pub­lic­an vote to break fili­busters with a simple ma­jor­ity.

A lot of people are won­der­ing how Con­gress in gen­er­al and the Sen­ate in par­tic­u­lar sank to these depths. In my view, it goes back to 1984, to a con­tested House race in In­di­ana’s 8th Con­gres­sion­al Dis­trict between fresh­man Demo­crat Frank Mc­Clo­s­key and his 28-year-old chal­lenger, state Rep. Rick McIntyre. In the ini­tial vote count, Mc­Clo­s­key led by 72 votes. Then a re­count flipped it to McIntyre by 418 votes, but with al­most 5,000 votes un­coun­ted for “tech­nic­al” reas­ons. At that point the Demo­crat­ic-con­trolled House in­struc­ted the Gen­er­al Ac­count­ing Of­fice to count the 5,000 votes and any oth­ers dis­al­lowed by loc­al elec­tion of­fi­cials, and some­how Mc­Clo­s­key was ad­judged the win­ner by four votes out of 133,000 cast. The Demo­crat­ic House ma­jor­ity, led by Speak­er Tip O’Neill, then voted to seat Mc­Clo­s­key on pretty much a party-line vote, and Re­pub­lic­ans walked out of the House cham­ber in protest.

In my view, the House should have fol­lowed the ap­proach the Sen­ate used 10 years earli­er after a sim­il­ar toss-up race in New Hamp­shire between Demo­crat John Dur­kin and Rep. Louis Wy­man, the Re­pub­lic­an run­ning for the seat be­ing va­cated by GOP Sen. Nor­ris Cot­ton. A par­tial re­count res­ul­ted in Wy­man be­ing ahead by two votes but with 3,500 dis­puted bal­lots. After the back-and-forth counts, the Sen­ate de­cided to simply or­der a re­run of the elec­tion, which was held in Septem­ber 1975 and res­ul­ted in a vic­tory by Dur­kin, the Demo­crat. The simple fact is that we don’t spend enough money on elec­tion ad­min­is­tra­tion to put any faith in a two- or four-vote dif­fer­ence in a con­gres­sion­al or statewide elec­tion.

The con­tro­versy over the Mc­Clo­s­key-McIntyre race led to the rise of firebrand Rep. Newt Gin­grich, who ef­fect­ively pushed out House Minor­ity Lead­er Robert Michel, an old school Re­pub­lic­an. Once Gin­grich be­came lead­er, he promptly went after O’Neill’s suc­cessor, Speak­er Jim Wright, ac­cus­ing him of eth­ics vi­ol­a­tions that res­ul­ted in him step­ping down.

This sent the House spiral­ing in­to a par­tis­an mor­ass. Re­pub­lic­an lob­by­ist John Mot­ley at the time was turn­ing the Na­tion­al Fed­er­a­tion of In­de­pend­ent Busi­ness in­to a grass­roots jug­ger­naut. He ex­plained that after Pres­id­ent Re­agan’s tax and budget vic­tor­ies in Con­gress in 1981 and 1982, with cru­cial help from South­ern and oth­er con­ser­vat­ive Demo­crats, O’Neill and the Demo­crat­ic lead­er­ship began tak­ing a more bare-knuckled ap­proach to deal­ing with the Re­pub­lic­an minor­ity.

While the House be­came a snake pit of par­tis­an­ship in the mid-1980s, the Sen­ate re­mained far more col­legi­al and above the fray. But as more House mem­bers, both Demo­crat­ic and Re­pub­lic­an, moved from the House to the Sen­ate, they brought with them the hy­per-par­tis­an­ship of the lower cham­ber.

The first mani­fest­a­tion of this change in at­mo­sphere was the fight over Pres­id­ent Re­agan’s Ju­ly 1987 nom­in­a­tion of Robert Bork to the Su­preme Court. Bork, a judge on the U.S. Cir­cuit Court of Ap­peals for the Dis­trict of Columbia, was nom­in­ated to fill the va­cancy left by the re­tire­ment of Justice Lewis Pow­ell. The Sen­ate, di­vided at the time between 55 Demo­crats and 45 Re­pub­lic­ans, turned down Bork’s nom­in­a­tion by a vote of 58 to 42. Two Demo­crats voted for the nom­in­a­tion, six Re­pub­lic­an voted against, and Bork be­came the first Su­preme Court nom­in­ee to be re­jec­ted on grounds oth­er than qual­i­fic­a­tions or eth­ics.

Four years later, Pres­id­ent George H.W. Bush nom­in­ated an­oth­er D.C. Cir­cuit judge, Clar­ence Thomas, to the high court. His nom­in­a­tion fight turned equally ugly after An­ita Hill, an at­tor­ney who had worked un­der Thomas at the Edu­ca­tion De­part­ment earli­er in their ca­reers, ac­cused him of im­prop­er sexu­al be­ha­vi­or. Thomas was con­firmed, 52-48, but the scar tis­sue from the bit­ter fight was deep and last­ing.

The dif­fer­ence between the up­per and lower cham­bers is that when the House is bit­terly di­vided, it makes the place un­pleas­ant, but fun­da­ment­ally doesn’t change out­comes be­cause the in­sti­tu­tion runs on ma­jor­ity rules. But the Sen­ate, with com­pletely dif­fer­ent tra­di­tions, rules, and prac­tices—in­clud­ing un­an­im­ous con­sent, fili­busters, and holds—is not equipped to deal with this level of par­tis­an­ship. As a res­ult, the Sen­ate has peri­od­ic­ally gone in­to un­con­trolled con­vul­sions and at times be­come vir­tu­ally dys­func­tion­al.

There is plenty of blame on both sides of the aisle for what has happened this week. Giv­en the in­creas­ingly po­lar­ized and par­tis­an nature of the coun­try, Con­gress and spe­cific­ally the Sen­ate might well have be­come this badly di­vided soon­er or later. Demo­crats ap­pear, at least to me, as hav­ing thrown the first two punches in this bar fight with the In­di­ana Eight and Bork nom­in­a­tions, but Re­pub­lic­ans have got­ten in more than their share of swings as well. The tox­ic re­la­tion­ship between Mitch Mc­Con­nell, the Re­pub­lic­an Sen­ate lead­er, and Harry Re­id, former lead­er of Sen­ate Demo­crats, proved to be an ac­cel­er­ant in the Sen­ate dump­ster fire. While Mc­Con­nell is hardly warm and fuzzy, Re­id be­came bit­terly and un­al­ter­ably par­tis­an. Sen­at­ors of both parties hoped that Mc­Con­nell’s re­la­tion­ship with the new Demo­crat­ic lead­er, Chuck Schu­mer, would work out bet­ter. But the col­li­sion course over fili­bus­ter­ing Su­preme Court nom­in­a­tions and chan­ging the Sen­ate rules had prob­ably be­come un­avoid­able.

What makes the situ­ation so un­for­tu­nate is that the unique­ness of the Sen­ate as an in­sti­tu­tion has been rendered moot. It is now simply a re­dund­ancy. Ori­gin­ally elec­ted not by voters but by state le­gis­latures, rep­res­ent­ing more di­verse states rather than in­di­vidu­al con­gres­sion­al dis­tricts, and with six-year as op­posed to two-year terms, the Sen­ate was sup­posed to be very dif­fer­ent from the House, a bit re­moved from polit­ics and tak­ing the broad­er and longer ap­proach to is­sues. The rules of the Sen­ate were ini­tially de­signed to bring about wis­dom and con­sensus, while the House would re­flect con­tem­por­ary pub­lic opin­ion by ma­jor­ity votes.

His­tor­i­an Mon­cure Daniel Con­way wrote in 1872 a story that has fre­quently been re­peated of a break­fast between Thomas Jef­fer­son and George Wash­ing­ton:

There is a tra­di­tion that Jef­fer­son com­ing home from France, called Wash­ing­ton to ac­count at the break­fast-table for hav­ing agreed to a second, and, as Jef­fer­son thought, un­ne­ces­sary le­gis­lat­ive Cham­ber.

“Why,” asked Wash­ing­ton, “did you just now pour that cof­fee in­to your sau­cer, be­fore drink­ing?”

“To cool it,” answered Jef­fer­son, “my throat is not made of brass.”

“Even so,” re­joined Wash­ing­ton, “we pour our le­gis­la­tion in­to the sen­at­ori­al sau­cer to cool it.”


While there is some de­bate over wheth­er this con­ver­sa­tion ac­tu­ally took place, it cap­tures the role of the Sen­ate—or what that role used to be.