Pre 1973 2021 medical instruments.

Late yesterday, at the U.S. Supreme Court:

SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 21A24
WHOLE WOMAN’S HEALTH ET AL. v. AUSTIN REEVE
JACKSON, JUDGE, ET AL.
ON APPLICATION FOR INJUNCTIVE RELIEF
[September 1, 2021]

JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and JUSTICE KAGAN join, dissenting.

The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents.

Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention. [….] Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent. [….]

KAGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 21A24
WHOLE WOMAN’S HEALTH ET AL. v. AUSTIN REEVE
JACKSON, JUDGE, ET AL.
ON APPLICATION FOR INJUNCTIVE RELIEF
[September 1, 2021]

JUSTICE KAGAN, with whom JUSTICE BREYER and JUSTICE SOTOMAYOR join, dissenting.

Without full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions. The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf. As of last night, and because of this Court’s ruling, Texas law prohibits abortions for the vast majority of women who seek them—in clear, and indeed undisputed, conflict with Roe and Casey.

Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence. Yet the majority has acted without any guidance from the Court of Appeals—which is right now considering the same issues. It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow docket decisionmaking—which every day becomes more un-reasoned, inconsistent, and impossible to defend. I respectfully dissent.

End the filibuster. Now.

Previously:

Susan Collins (r) weighs in (September 1, 2021)

Always there (September 1, 2021)

Here we are (September 2, 2021)

McCain didn’t call out our own Senator Roy Blunt by name, but the implication is clear; the shoe is clearly measured to fit Blunt and he’ll just have to wear it. So how did Blunt who is usually very careful to try to appear reasonable when he’s in front of adults (his Republican base is another matter – witness the Obama “monkey” comments) earn the vituperation of the admittedly often vituperative McCain?

Remember back when Democrats who had had enough of GOP obstructionism changed the requirements for approval of presidential appointments to a straight-up majority vote rather than a super majority of 60 votes? The change only went so far; it didn’t apply to legislation or to appointments to the Supreme Court. And it took lots of provocation and unfilled positions before Harry Reid was moved to act:

It represented the culmination of years of frustration over what Democrats denounced as a Republican campaign to stall the machinery of Congress, stymie President Obama’s agenda and block his choices for cabinet posts and federal judgeships by insisting that virtually everything the Senate approves be done by a supermajority.

And do you remember what Republicans said at the time? I believe that there were accusations of “irreparably damaging” the Congress and disregarding “constitutional prerogatives” along with threats of a bad outcome for Democrats down the line. Our own Republican Senator Roy Blunt echoed Minority Leader Mitch McConnell’s  sinister threats of bad times ahead for folks who dared stymie GOP obstructionism:

“The last time the Democrats decided they were going to do something all by themselves it was Obamacare,” said Senator Roy Blunt, a Missouri Republican. “And I’m pretty sure they regret doing it that way and my guess is they’ll regret this at some point too.”

Now that it’s proving successful, I doubt that there are many Democrats who regret Obamacare, but Blunt, who apparently never forgets a grudge, thinks that he can insure that Democrats regret changing the filibuster rules. Along with fellow Republican Senators Lamar Alexander of Tennessee, and Mike Leeof Utah, Blunt is proposing a similar change to the approval process for Supreme Court nominees.

Oddly, though, as Politico notes, not all Democrats are as disturbed by the proposed expansion of the rule change:

“We’re witnessing a massive flip-flop in slow motion,” said Adam Jentleson, a spokesman for Senate Minority Leader Harry Reid (D-Nev.). “Democrats appreciate the vote of confidence from Republicans in the wisdom of our rules change.”

It seems that whether or not our pols approve of changing the rules that govern congressional approval of judicial nominees depends on how confident they are that their party will take the White House and Senate in 2016. And many Democrats aren’t necessarily sure that 2014 presages a GOP victory in a presidential election in which most of the Senate seats that are up for grabs will be, contrary to the last election, in less GOP-friendly states. And of course, they’re also watching with glee the gathering of rightwing clowns, ethically-challenged governors and GOP establishment retreads who are now declaring their presidential ambitions.

In fact, the most outspoken condemnations of the Blunt/Alexander initiative comes from a Republican:

Sen. John McCain (R-Ariz.) warned his colleagues about the “sheer hypocrisy” of such a move. “We said this was outrageous what they did,” McCain said. “Not only how they did it, but what they did, OK? Some of my Republican colleagues seem to have forgotten that. Some selective amnesia.”

Sheer hypocrisy! Hear that Roy Blunt? John McCain is shocked by your sheer hypocrisy. Of course, lots of us here in Missouri could have told him all about how Blunt rolls a long time ago. But it’s not a bad thing to have Blunt outed by one of his own party, even if it is coming a bit late. As Eric Posner observes in Slate:

… . When senators argue about the filibuster, they appeal to the public interest, but if their position on the rule always reflects their political interests, then they are, essentially, lying. It all seems like a game.

A game. Indeed. But, of course, it’s a game with potentially deadly consequences. It’s just too bad that nowadays the GOP can’t find any players that aren’t plain and simple liars and hypocrites. I know why Democrats had to change the initial rule; I also know why Republicans are proposing to expand the change. The reasons aren’t even remotely similar. I’m with John McCain on this one.

A majority of the members of the U.S. Senate can change their procedural rules. Today that body did just that, in a reaction to republican minority obstruction, in ridding the body of the filibuster for district court federal judgeships, appellate court judgeships, and administration appointments subject to Senate approval. Bear in mind, a majority of senators must still approve these appointments.

Senator Claire McCaskill (D) was one of the members of the Senate who finally had enough of the unprecedented republican minority obstruction and who voted for the rule change.

Meanwhile, a few people have come down with a case of pearl clutching vapors, via Twitter:

Milo ‏@chasbottom

@clairecmc I’ll remember your vote on the filibuster rule when election day is here. You’re Harry Reids vote, right? 2:42 PM – 21 Nov 13

Uh, you’re gonna have to wait until 2018. It’s going to be a while.

Tessa M. Harper ‏@TessaHarper2

@clairecmc Today you put another nail in the coffin of your political career 7:23 PM – 21 Nov 13

Again, it’s a long wait to 2018.

It’s so comforting to know that republican senators agree that the filibuster is one of the most important and inviolable constitutional prerogatives of that body. Oh, wait…

Almost three years ago we asked Senator McCaskill (D) about filibuster reform:

Senator Claire McCaskill (D): a conversation with bloggers in Kansas City (January 20, 2011)

….Blue Girl: One in nine federal judgeships, first question here, uh, they, you know, Congress, the hundred eleventh adjourned before the Senate could even consider hundreds of bills, uh, nothing’s been getting done, uh, this did not happen because it takes sixty votes to break a filibuster but because the minority can force the entire Senate to waste up to thirty hours ever, ever, every time the Senate holds a vote. What reforms do you support to stop this obstruction of even the most uncontroversial business?

Senator Claire McCaskill (D): Um, well the good news is that we did get twenty-two of them through, um, judges through, uh, by, by unanimous consent right before we adjourned. So, that’s good. Um, I do think the secret hold thing is really important because if you own it then you gotta explain it. And what happens is these guys hold these things secretly and then they, of course, vote for the nominees when they’re for, forced to.

Blue Girl: Right.

Senator Claire McCaskill (D): So, you having the ability just to gum things up without anybody ever taking ownership is a huge problem. I am optimistic that we are gonna get the rule change on secret holds.  Um, I think that is really hard for the other side to justify as they’re preaching transparency and accountability. I don’t know how they don’t accept a change in the rules to do away with the secret hold. And I think you do away with the secret hold it has an amazing ability to clean some of this stuff up. Now, do we make the changes in the filibuster? I would love to see the people who are filibustering have to be the ones to produce the forty. I’d love to see the people who are doing the filibustering have to hold the floor. I’d love for the people to see an actual filibuster.

Blue Girl: Yeah.

Senator Claire McCaskill (D): Instead of the procedural  way they’ve done it,  which is they quietly object and then they kind of skulk off and the majority is left there to hold the floor and, and for the thirty hours and the staff [crosstalk] is there and so [crosstalk]…

Blue Girl: They should read about the Polish Sejm.

Senator Claire McCaskill (D): Uh, yeah. So, so, um, but the question is, are we willing to break what has been traditional precedent in the Senate and change the rules by a simple majority vote? And once we do that then we need to realize that it can always be done. And that means that the Republicans could do the same thing if they took the majority in two years. And we have to realize the rules they may want to change may not be as reasonable and modest as the rule changes we want. [crosstalk]

Michael Bersin, Show Me Progress: But does, but does anybody expect that, you know, given their past behavior that they wouldn’t do that anyway?

Blue Girl: Yeah.

Senator Claire McCaskill (D): I think it’s really hard for them to do that anyway. I think it’s very hard. I think, um, it’s, it’s, uh, it’s kind of what happened with the nuclear option. As you remember, there was a group of Republicans that wanted to do this when Democrats, uh, were blocking Bush’s judicial nominees. And it was in fact a group of moderate Republicans that said, no, we’re not gonna do this. And it didn’t happen. If it had happened I don’t know, you know, we probably would have had some significant rule changes along the lines that a lot of people are talking about now. You know, the Republicans make the point, and it is a valid point, how often we fill the tree. Um, we have filled the tree a lot. We have not given the Republicans an opportunity to offer amendments and so it’s almost like an escalating warfare here. Um, and the reason that we fill the tree is because they’re, I think the leadership thought it was a good idea to keep us from having to waste time on voting on amendments that were not germane. What I affectionately call the gotcha amendments.  And [crosstalk]…

Blue Girl: Poison pills.

Senator Claire McCaskill (D): The, yeah, poison pills. Um, at the end of the day. It’s probably what you signed up for when you go to the United States Senate, that you’ve got to cast difficult votes. And I’m one of the senators that is encouraging leadership to not always fill the tree, to allow open amendment process. Um, so, we’ll see what happens on the rules. But I, I’m gonna be surpri, we’ve all signed  a letter  saying we want these rule changes. And I am supporting these rule changes. And I’m hopeful these rule changes happen. Um, but if they don’t I think we’ve got to, you know, decide, um, how far are we willing to go and what are the consequences of that long term for the Senate and for the minority, not just in the current scenario….

Here’s the thing, anyone who thinks a republican majority in the Senate wouldn’t get rid of the filibuster (for everything) at their first opportunity is delusional.

It took long enough for the current Democratic majority to realize just that.