Columnist Jim Oldham: Lauds Warren for persistent challenges

Thursday, February 16, 2017

We owe a big thank you to U.S. Sen. Elizabeth Warren for her principled and tenacious opposition to the appointment of Jeff Sessions for attorney general, and her continued challenges to the Trump administration and the Republican majority despite their attempts to silence her.

Warren was absolutely right to forcefully oppose Sessions’ appointment as the nation’s chief law enforcement officer. It is a total disgrace that the Department of Justice is now led by a man with a documented history of using his public position to disenfranchise African-American voters, as described by Sen. Edward Kennedy and Coretta Scott King back in 1986, in statements Warren was stopped from reading on the Senate floor.

You needn’t go back decades to understand Sessions’ attitude regarding the rights of those different from himself. He celebrated the Supreme Court’s 2013 invalidation of parts of the Voting Rights Act and Rudolph Giuliani credited him with helping shape President Trump’s horrific approach to immigration. As to his concern for the Constitution, he supported both President George W. Bush’s warrantless wiretapping program and the Bush Justice Department’s justification of waterboarding

Majority Leader Mitch McConnell’s use of Senate Rule 19 — adopted in 1902 and intended to moderate the tone of debate among senators — to prevent Warren from critiquing a Cabinet nominee was unprecedented and undemocratic. If senators are nominated to executive branch positions, they need to face the same level of scrutiny as any other nominee, not be protected by parliamentary rules that apply only to them.

Cutting off of Warren’s comments through the arbitrary application of Rule 19 is just the latest in the continued misuse of power and debasing of the political process by McConnell and the Republican Party that has included the failure to even consider former President Obama’s Supreme Court nominee, a two-year obstruction of the appointment of a director for the Consumer Financial Protection Bureau, and much more.

Admittedly, Warren’s opposition to Sessions, and that of other Democrats, was symbolic. His appointment was secured by a 52-47 vote, with only one Democrat, Joe Manchin of West Virginia, joining the Republican majority. As with the appointments of Rex Tillerson for secretary of state, Steven Mnuchin at Treasury, Betsy DeVos, secretary of education, and Tom Price, head of Health and Human Services, the margin of victory was small enough that the Democrat minority could have blocked these appointments under rules in effect until 2013.

The Democrats themselves were compelled to change those rules due to Republican obstructionism. The Republican minority had used filibusters to block or delay 20 of Obama’s district court nominations, compared with only three such filibusters under all previous U.S. presidents. As with the Consumer Financial Protection Bureau, the Republicans blocked judicial nominations not because of any problem with the nominees themselves but as a way to undermine the court, such as the U.S. Court of Appeals for the District of Columbia, to which they were being appointed.

The loss, for minorities of either party, of the ability to resist extreme appointments is a direct result of the Republican abuse of that power and a clear example of how overly aggressive politics has long-term negative impacts on our democracy.

Successful or not, opposition to these nominees is important. It sends a message that the minority party will stand against the policies that the Trump administration is hoping to push forward.

The filibuster remains a viable tool for a minority to oppose legislation and the strong votes against these nominees hopefully indicates a readiness of Democrats to do everything in their power to defend civil rights, labor rights, access to health care, environmental protections and all that is at risk.

The filibuster also remains a viable and essential tool for blocking Supreme Court nominees. I’m pleased that both Warren and Sen. Ed Markey have unequivocally opposed the appointment of Neil Gorusch who is, as Markey said, “outside the judicial mainstream,” and “has authored or joined opinions that have demonstrated hostility to women’s reproductive rights, commonsense environmental regulations, and the rights of workers, consumers, and the disabled.”

Some commentators have argued that the threat that Republicans could change the rules means that Democrats should allow Gorsuch to assume the seat previously held by Antonin Scalia, another extreme conservative, and hold off on opposing a nominee until a liberal judge retires. However, besides being a complete capitulation to the Republicans’ unprecedented refusal to consider Obama’s nominee last year, such a strategy ignores political reality.

As argued in a recent article in The American Prospect, “The Prisoner’s Dilemma: Why Democrats Should Block Gorsuch,” by David Atkins, a more conciliatory strategy would make sense if there were any indication that it would be reciprocated: “When both players…are rational, cooperation is the wisest strategy,” but when the other side concedes nothing, one has to fight.

Our Massachusetts senators should continue their strong resistance.

Jim Oldham is a Town Meeting member from Precinct 5.