The threatened filibuster by the Democrats of Judge Neil Gorsuch seems irrational if its purpose to help create a Supreme Court more friendly to Democratic commitments. Almost everyone expects the response by the Republicans will be the so-called nuclear option by which they use their majority to end the filibuster rule for Supreme Court nominations. The Republicans believe that filibustering a mainstream judge in the first year of a President’s term is illegitimate. Given that in 2013 the Democrats eliminated the filibuster for lower court and executive appointments, they will also regard themselves fully justified in taking a similar action themselves. And the Republicans will be acting within their constitutional rights: as Mike Rappaport and I have shown, the Senate majority must have the authority to change supermajority rules by majority vote.
The elimination of the filibuster leaves the Democrats in a worse position for the rest of President Trump’s term. The most obvious reason is that they then cannot filibuster the next nomination— the one likely to fill the seat of Justice Ginsburg or Justice Kennedy.
In his state of the union and again in his recent interview with Politico, President Obama expressed sorrow that he has not been able to end political animosities. As he put it in the interview, “a singular regret for me is the fact that our body politic has become more polarized, the language, the spirit has become meaner than when I came in.”
Obama blames different factors from the media to gerrymandering for our angry divisions. But Obama himself is in no small measure responsible for polarization. His reliance on executive action, most egregiously his order on immigration, is a primary cause. Unsupported by any express delegation from Congress, this extraordinary act is enormously controversial. It seeks to permit five million people who have come to this country illegally not only to stay but to work.
Legislation on divisive issues is much less likely to lead to polarization than executive fiat.
The number of contradictory positions associated with the words “liberal” and “liberalism” have led some to conclude that such expressions are now so unstable in their meaning that they lack sufficient descriptive power of any lasting significance. Of course, the same could be said of terms used to describe most modern political positions, including “conservatism” and “socialism.” Liberalism, however, seems particularly amorphous inasmuch as the phrase is associated with figures as apparently different in their starting points and conclusions such as Friedrich Hayek and John Rawls, but also David Hume and Immanuel Kant.
Or is it? In his new book Free Market Fairness, the political philosopher John Tomasi challenges and seeks to overcome some of the internal divisions among those who ascribe to the liberal nomenclature. Rather than attempting a synthesis of competing schools of liberal thought, Tomasi outlines what he is very careful to specify as a “hybrid” (87) political theory that draws upon classical liberalism and libertarianism on the one hand, and what he calls high or left liberalism on the other. Tomasi does not seek to somehow ground classical liberal institutions on the basis of left liberal moral imperatives, or vice-versa. Instead he argues for what he calls market democracy as a “justificatory hybrid . . . which combines insights from the classical and liberal traditions at the level of moral foundations” (95).