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Sen. Merkley: McConnell Paralyzed the Senate & Turned Supreme Court into “Far-Right Legislature”

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As Kentucky Senator Mitch McConnell announces he will step down as the Senate’s Republican leader after 17 years — the longest term in Senate history — we speak with Oregon Senator Jeff Merkley, who says, “McConnell’s legacy has been one of obstruction.” He describes McConnell’s “aggressive” use of the filibuster, the topic of Merkley’s new book, Filibustered!: How to Fix the Broken Senate and Save America, as having “broken the cycle in which government can function.” Merkley also discusses Republican manipulation of judicial appointments and the cloture motion in pushing the legislature further right.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: I want to ask you about their breaking news yesterday about Senator McConnell stepping down as the Republican leader of the Senate, a position he has held longer than any senator in history. He’s going to step down next November, in a move that’s expected to strengthen Trump’s control of the Republican Party, served 17 years as Republican leader. I wanted to talk about his record. He said he plans to finish as senator. During his leadership, McConnell successfully blocked voting on Democratic bills, from gun control to election integrity, ramming through Republican priorities, including Trump’s $2 trillion tax cuts for corporations and the wealthiest Americans, helped stack — Trump stack federal courts with far-right judges, reversed the 60-vote threshold for confirming Supreme Court justices, allowing Trump to install three right-wing justices on the bench, a few years after stonewalling President Obama’s Supreme Court justice pick Merrick Garland. It’s absolutely amazing, what happened, saying, when Scalia died — I want to play a clip of McConnell himself talking about why Merrick Garland would not be able to have a hearing before the election the following November.

MAJORITY LEADER MITCH McCONNELL: It’s been more than 80 years — 80 years — since a Supreme Court vacancy arose and was filled in a presidential election year. And that, Mr. President, was when the Senate majority and the president were from the same political party — the same political party. It’s been 80 — 80 years. Since we have divided government today, it means we have to look back almost 130 years to the last time a nominee was confirmed in similar circumstances. That’s back when politicians like mugwumps were debating policies like free silver, and a guy named Grover ran the country. Think about that. As senators, it leaves us with a choice: Will we allow the people to continue deciding who will nominate the next justice, or will we empower a lame-duck president to make that decision on his way out the door instead?

AMY GOODMAN: So, that was 2016. Meanwhile, September 2020, Senate Democrats slammed Senate Majority Leader McConnell for rushing to fill Justice Ruth Bader Ginsburg’s seat so close to the November election, holding hearings on the nomination of the conservative federal judge Amy Coney Barrett when early voting had already begun in some states. She was confirmed a week before Biden’s election. Senator Merkley, your assessment of McConnell’s tenure?

SEN. JEFF MERKLEY: Yes. Back in the mid-1990s, when Gingrich was shifting strategy on the House side — and that shift in strategy was to say, “Rather than cooperate with the majority to get some things into bills, we’ll basically obstruct them as much as we can and then argue that their failures mean they should be replaced,” and that proved to be an effective strategy — McConnell said, “Gingrich gives obstruction a good name.” But in the Senate, he had tools Gingrich could never have dreamed of. He had the nomination process, which every objection to closing debate means a nomination could take a week, so it could really slow things down. And then he had the 60-vote requirement for closing debate. And if you flip the math, it means that in the minority, with 41 votes, you can paralyze the Senate on policy bills. And he used that in an aggressive strategy, and he used it on nominations, and he really brought obstruction to be the premier tool of the minority, arguing the more you obstruct, the more you make that case for the majority to be replaced by the minority.

I really thought, when I first heard this, this was just so absurd, and the American people would see it and understand it and reject it and penalize the minority for using obstruction in this fashion. But I was wrong. It turned out to be an incredibly effective strategy, because the American people hold the majority accountable. They’re like, “If that’s — if you’ve got a problem with getting things done, solve that problem. You are in charge.”

And so, his legacy has been one of obstruction, and it has been one in which he has used the most convenient argument of the moment in order to make power moves on behalf of the Republican Party, to make the first time in U.S. history that the Senate didn’t debate a nominee, the very first time — I called it the stolen seat — when Obama nominated, near the end of his term, and then proceeded to change the rules for the Supreme Court and in exact contravention of the argument he had made just prior. So, it was the argument of the moment, no consistency, except the strategy of obstruction of Democrats and power moves for Republicans. And for the power moves, I’m sure much of the Republican Party appreciates him, for the Supreme Court justices, but it has done incredible damage to the institution of the Senate and incredible damage to the institution of the Supreme Court.

AMY GOODMAN: And are you concerned that the person who replaces him will be even more extreme? Word is it’s going to be one of the three Johns who always stand behind him: Senators John Thune of South Dakota, John Cornyn of Texas, and John Barrasso, perhaps the most MAGA, of Wyoming.

SEN. JEFF MERKLEY: There’s a lot of things to worry about, but some things are completely out of my control, so I’ll just wait and see what happens. And that certainly is the case in the selection of the Republican leader.

NERMEEN SHAIKH: We’re speaking with Democratic Senator Jeff Merkley, who has authored a new book with his chief of staff titled Filibustered!: How to Fix the Broken Senate and Save America. This is Senator Merkley holding a filibuster-like session overnight back in 2017, speaking for more than 15 hours in protest of the Supreme Court Justice Neil Gorsuch’s nomination.

SEN. JEFF MERKLEY: And to confirm anyone but Merrick Garland to this seat confirms the Senate as the thief who took the seat for the first time in U.S. history and transported to another president in an effort to pack the court.

NERMEEN SHAIKH: So, Senator Merkley, if you could talk about your book, just out last month?

SEN. JEFF MERKLEY: Yes. Well, that situation that night, what I knew was coming was that at the very moment that the minority leader — Majority Leader McConnell proceeded to put the nomination on the floor for Gorsuch, he also filed to close debate. And so there wasn’t a long obstruction of any kind. There was zero obstruction. But he wanted to make sure he did this as quickly as possible — that is, to install Gorsuch — in order to have the public pay as little attention as possible. He knew it was controversial. He wanted to get it over with, and so he minimized the debate in a fashion we’ve never seen before, and also did that to change the rules from a supermajority to close debate to a simple majority.

Democrats had changed the rules, after massive obstruction by McConnell, on lower courts, but we said the Supreme Court has to retain the integrity and legitimacy necessary to play its role in the balance of powers and the separation of powers in our government, and that, therefore, we should leave that as a supermajority requirement. McConnell, in this power move, said, “Well, you know what? We’re going to get those judges in, no matter how extreme they are, no matter how flawed they are, because they are going to rule in fashion that is like legislating for the far right.” And that’s what we have now, a deeply damaged court operating as really a legislature for the far right.

AMY GOODMAN: So, Senator, I know you have to go, but we want to ask about that subtitle, which is key, How to Fix the Broken Senate and Save America.

SEN. JEFF MERKLEY: Yes. Well, right now we are completely paralyzed by the cloture motion, designed to be used once a decade. It’s used once or twice a day, and it takes up a week. It’s just completely paralyzed the place. We have — instead a voice for the minority and an incentive to compromise, we have a veto by the minority without an incentive to compromise. And that means the cycle of government is broken.

The American people believe the government is supposed to be you elect people, and if you get a majority, then they can implement that vision. But if you can’t implement that vision because there’s a minority veto, then that just produces cynicism and frustration, which is exactly what we see today. The founders had seen this with the Confederation Congress, which required a supermajority. They said, “Whatever you do, never replicate this. This will be a formula for tedious situations and contemptible compromises of the common good.” But we have done exactly what the founders said not to do: flipped democracy on the head, given the minority the power to choose the path, and broken the cycle in which government can function.

That is why we have to reform the filibuster, go from this current 41-vote paralysis to a talking filibuster, where there’s an incentive for compromise and where the debate is held before the American people and there’s an eventual pathway to get to a majority vote.

AMY GOODMAN: Senator Jeff Merkley, we want to thank you so much for being with us, co-author of the new book, Filibustered!: How to Fix the Broken Senate and Save America. Senator Merkley traveled to the Rafah crossing back in January, now in November has become only the second senator to call for a ceasefire in Gaza.

When we come back, we’re going to speak to one of his constituents. That’s right, we’re going to speak to another Oregonian, who’s teaching at the University of Oregon in Eugene. He’s the U.N. special rapporteur on the right to food, Michael Fakhri. Stay with us.

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