Today’s Edition: Nothing but “No!”

June 18, 2021

          Plain-spoken Joe Biden has captured the essence of Mitch McConnell. When asked on Thursday about McConnell’s threat to block a Biden nomination to the Supreme Court in 2024, Biden said,

          Mitch has been nothing but “No” for a long time. And I'm sure he means exactly what he says, but we'll see.

          Just as preeminent scientists have their most famousequations inscribed on their tombstones, Mitch McConnell’s epitaph should be “Nothing but no.” On Thursday, Senator Joe Manchin’s dream of bipartisan support for his minimalist voting rights bill was dashed on the treacherous reefs of McConnell’s political nihilism. As noted yesterday, Manchin has been attempting to cobble together bipartisan support for “H.R.1‑lite” by circumventing the leadership of both parties. When it appeared that Manchin had made a smidgen of progress, Mitch McConnell whacked Manchin on the nose with a rolled-up newspaper and said, “Bad Senator!” Okay, I am exaggerating a bit, but not much. What McConnell said was this:

          I would make this observation about [Manchin’s] revised version . . . all Republicans I think will oppose that as well if that were to be what surfaced on the floor.

          Note McConnell’s reference to “all Republicans” opposing Manchin’s austere version of H.R.1—including those hapless Republicans who were under the mistaken impression they could negotiate with the opposition without McConnell’s permission. Let’s hope that Manchin has learned his lesson: It is pointless to negotiate with terrorists or Mitch McConnell.

          Manchin’s effort to frame a bipartisan voting rights bill is over. Attention will now turn to negotiations within the Democratic caucus in the Senate—and Manchin’s position on the filibuster. Manchin has made private comments suggesting that he would support modest revisions to the filibuster, but those modifications are pointless if McConnell refuses to allow a single Republican to break ranks. See Mediate, “In Leaked Audio, Manchin Tells Donors He’s Open To Lowering Filibuster Threshold: ‘One of the Many Good, Good Suggestions I’ve Heard’.”  

          Schumer intends to test McConnell’s grip on GOP Senators by forcing a procedural vote on S.1 next week. See The Hill, “Schumer to force vote Tuesday on sweeping election bill.” The strategy may be to propose a version of the bill that will secure unanimous support from all 50 members of the Democratic caucus in the Senate. On Thursday, Stacey Abrams endorsed Manchin’s pared-down proposal on the theory that something is better than nothing. See NBCNews, “Stacey Abrams backs Manchin's voting rights compromise as Senate eyes vote.” Unless the filibuster is eliminated, the vote in the Senate next week will be solely for the purpose of pressuring centrist Democrats to eliminate the filibuster.

          All of the above raises serious doubts about the efforts of Manchin, Sinema, and others to create a bipartisan infrastructure bill. Like efforts on the voting bill, the centrists are making deals satisfactory only to themselves with no assurance that other Senators will follow. We know that Schumer has rejected the current framework proposed by the bipartisan group. See The Hill, “Schumer vows to only pass infrastructure package that is 'a strong, bold climate bill'.” And we can expect that “Nothing but no” McConnell will soon jerk the leash on the misguided members of his caucus who quaintly believe they have the ability to act on their own.

          The moment of truth will soon be upon Senate Democrats. Months of posturing and theatrics will come to an ignominious end this month. Will congressional Democrats seize the moment, or will they allow an antiquated, anti-democratic rule in the Senate to determine the course of our nation? Let’s hope that McConnell’s “nothing but no” approach will prove to Democrats that they have no choice. The only open question is whether they have the courage to rise to the challenge.

The Supreme Court’s Rulings on Thursday.

Two rulings by the Supreme Court on Thursday should dispel the notion that Court is not a political animal. Faced with two cases that lie at the heart of the conservative agenda, John Roberts deftly avoided ruling on the substance of either case. Why? Because giving conservatives what they wanted would have (a) accelerated calls to enlarge the Court and enact other SCOTUS reforms, and (b) enraged and mobilized Democrats going into the 2022 elections. By temporizing, Roberts hopes to outlast the current trifecta in which Democrats control the White House and both chambers of Congress—the necessary condition for Supreme Court reform.

          If you are interested in the details of how Roberts avoided ruling on the substance of the cases, see Ian Millhiser in Vox, “Supreme Court: An epic showdown over religion and LGBTQ rights ends in a whimper.” In short, the Court ruled in Fulton v. Philadelphia that a dispute over a Catholic organization’s ban on same sex foster parents did not present a constitutional question. As to Obamacare, in California v. Texas, the Court avoided a ruling on the constitutionality of the Affordable Care Act by holding that the plaintiff states lacked standing to challenge the legislation.

Conservative Justice Alito was unsparing in calling-out the evasion and political expediency of the majority’s rulings. See Politico, ‘Alito was just pissed’: Trump’s Supreme Court breaks down along surprising lines.”  As to Fulton v. Philadelphia, Alito wrote in dissent:

          After receiving more than 2,500 pages of briefing and after more than a half-year of post-argument cogitation, the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed—as am I.

          Alito’s dissent in California v. Texas included the following:

          No one can fail to be impressed by the lengths to which this Court has been willing to go to defend the ACA against all threats. A penalty is a tax. The United States is a State. And 18 States who bear costly burdens under the ACA cannot even get a foot in the door to raise a constitutional challenge. Fans of judicial inventiveness will applaud once again.

          While I rarely agree with Justice Alito, he is right in claiming that the Court went to great lengths to avoid ruling on the merits in the opinions issued Thursday. Compare that reluctance with the Court’s eagerness to overrule precedent in other cases this year. See Vox (5/18/21), “Brett Kavanaugh’s latest decision should alarm liberals.” As noted in Vox, Justice Kavanaugh has twice overruled established precedent despite the fact that no party had asked the Court to do so. Against that backdrop, Alito’s complaint has the sting of truth: An activist conservative majority decided that it was bad politics to rule on the merits in Fulton v. Philadelphia and California v. Texas. We should not let John Roberts’ self-evident political manipulations dampen enthusiasm for Supreme Court reform.

Concluding Thoughts.

Joe Biden signed legislation on Thursday that declared Juneteenth to be a national holiday—to be observed this year on Friday, June 18, 2021. See NYTimes, “Biden Signs Law Making Juneteenth a Federal Holiday.” Although the legislation became effective only one day before the 2021 observance of the holiday, there are celebrations of Juneteenth across the nation. See The Root, “Celebrate Juneteenth 2021 With These Events Happening All Across the Country.”

          The passage of the legislation was a glimmer of hope during a fractious time. As conservatives across the nation seek to limit the ability of educators to discuss slavery and racial discrimination in the classroom, the legislation creating the holiday enjoyed bipartisan support in both chambers of Congress. More than 150 years after the abolition of slavery in all states, America has finally recognized that momentous, convulsive, nation-shaping event in our history. It should be a day of remembrance, reflection, and introspection. Only 156 years ago, white Americans could own Black Americans. The last survivor of American slavery died in 1972. The lives of enslaved Americans are still within the living memory of millions of Americans. Pretending that America has “moved on” from its original sin is untrue and corrosive to efforts at reconciliation and healing. I hope that everyone takes time during the first national celebration of Juneteenth to reflect on the consequential event commemorated by the holiday.

          Have a good weekend! Talk to you on Monday!