Known for its honey pecan ice cream, Cleveland’s Honey Hut isn’t used to being at the center of the political conversation. But when President of the United States and noted ice cream enthusiast Joe Biden stopped by for a cone of chocolate chocolate chip in May, the Cleveland establishment was inundated by reporters seeking the latest scoop. Asked about Republican opposition in Congress to the creation of a commission on the January 6th invasion of the U.S. Capitol, Biden quipped, “I can’t imagine anyone voting against establishing a commission on the greatest assault since the Civil War on the Capitol. But at any rate, I came for ice cream.”
Biden’s response was clearly meant in jest, and I am not one to criticize the return of good humor to the White House. Yet, Biden’s deflection is emblematic of the rather ho-hum attitude of certain Democratic leaders when it comes to holding the GOP accountable for the excesses of the Trump era and reforming institutions to improve the functioning of democracy. Biden recently warned that America is “facing the most significant test of [its] democracy since the Civil War” due to Republican attempts to suppress voting rights and subvert fair elections. But key Democratic players across all three branches of government have shown themselves unwilling to defy existing norms in order to fortify democratic institutions against looming Republican threats. In particular, Joe Manchin’s undue attachment to the filibuster, Stephen Breyer’s refusal to retire, and Merrick Garland’s reluctance to fully investigate the Trump administration serve as stark examples of the failure of the Democratic establishment to meet this dark moment in American political history.
The Senate Divided
It’s worth noting that although the bill to form the aforementioned January 6th commission was supported in the Senate by a 54 to 35 vote, it failed to pass as it was short of the 60 vote threshold needed to overrule the filibuster. Indeed, with a 50-50 split in the Senate, the filibuster has made many of Biden’s legislative priorities, such as voting rights and a $15 minimum wage, effectively dead on arrival. Democrats could easily eliminate the filibuster with a simple 50 vote majority, but Democratic senators including Krysten Sinema and Joe Manchin have refused to consider scrapping it.
Manchin in particular has drawn increased media scrutiny, and has stated that “There is no circumstance in which [he would] vote to eliminate or weaken the filibuster,” arguing that the legislative tool has served an important purpose historically and is necessary to foster bipartisanship in the Senate. Though the problematic history of the filibuster merits independent consideration, Manchin’s claim about modern bipartisanship seems severely misguided. Mitch McConnell has shown that he will use the filibuster to block nearly every single bill proposed by Democrats — even when the bill at hand is about investigating the insurrection that nearly killed members of the chamber — to stymie the Democratic agenda and improve the GOP’s midterm prospects. In a political reality where bills are neither debated nor amended because they are immediately blocked by the filibuster, bipartisanship quickly becomes a pipe dream.
In short, Republicans’ starkly partisan approach to the filibuster has rendered the Senate ineffective and unfair. Chasing the spectre of bipartisanship, Manchin and other Democrats have refused to reform the Senate, clinging to the filibuster even as it has sunk Biden’s policy goals and any hope for fruitful discourse in the chamber.
To be fair, Manchin is in a unique position: he’s a Democratic senator from a state Trump won by nearly 39 percentage points in 2020, so appearing as a moderating force in favor of bipartisanship is important for his reelection chances. In an effort to find bipartisan support, the politician has also recently released a new voting rights proposal, which is effectively a watered-down version of the For the People Act with some concessions to Republicans. Despite its attempts to appease both political orientations, it’s very difficult to imagine this proposal finding 10 Republican votes to break the filibuster given that the cloture vote for the initial draft of the For the People Act failed on a 50-50 party-line vote.
Though Manchin may have a master plan, his current defense of the filibuster is harming the Senate as an institution while preventing Democrats from responding to attacks on voting rights across the country through the For the People Act.
The Retirement Fund
One vote for which the 60 vote threshold is no longer required is that of Supreme Court confirmations. In 2017, to break the Democratic filibuster on Neil Gorsuch’s confirmation, the Republican majority in the Senate changed its rules to allow a simple majority to override a filibuster on a Supreme Court nominee. Gorsuch thus filled the seat that would have been occupied by Merrick Garland — President Obama’s nominee — if not for Republican obstructionism. Citing bogus rules about not confirming a Supreme Court nominee during an election year, McConnell refused to hold hearings on Garland’s confirmation, running out the clock until Trump’s 2016 win. Of course, when Ruth Bader Ginsburg died less than two months before the 2020 election, Republicans did not hesitate to confirm Amy Coney Barrett at breakneck speeds, breaking from the precedent they had set in 2016.
All of this brings us to Stephen Breyer, the 82-year-old liberal Supreme Court justice who has come under increasing pressure to retire this past year. With McConnell warning that he wouldn’t confirm a Biden-appointed Supreme Court nominee in 2024 or even 2023 if the Republicans take back the Senate during the 2022 midterms, liberal activists have called for Breyer to retire so that Biden can nominate and the Senate can confirm a liberal replacement while the Democrats retain control of the chamber.
But Breyer has defied these calls, arguing that retiring now would only further politicize the court, which Breyer considers problematic because “It is wrong to think of the court as another political institution.” What’s frustrating about Breyer’s situation is that he is completely correct: retiring now would treat the Supreme Court as another partisan playing field, instead of the deliberative body above the partisan fray that it was designed to be. But the issue is, McConnell has made the judiciary the central political battleground over the past decade by blocking nominees to different federal courts during the Obama years and rushing nominees during the Trump years. Indeed, Trump appointed almost exactly as many federal appellate judges as Obama did — but in half the time.
And through the blocking of Garland and fast-tracking of Barrett, McConnell created an artificial 6-3 conservative Supreme Court majority, perverting the balance of the court. If Breyer misses his opportunity to retire now, McConnell will do everything in his power to create a 7-2 majority when Breyer eventually leaves the court. It’s fine for Breyer to be an institutionalist and support the apolitical norms of the Supreme Court, but when one party has desecrated those norms to give itself a partisan advantage that is unrepresentative of the will of the people, those norms have to be updated to protect those institutions. And unless Democrats suddenly adopt a proposal to introduce Supreme Court term limits or reshape the structure of the court — which, you guessed it, would most likely require breaking a filibuster in the Senate — Breyer is one of the last stands against the Supreme Court completely falling under McConnell’s political machinations.
The Second Chance
If there’s anyone who has a bone to pick with Trump, McConnell, and the Republican establishment, surely it’s Merrick Garland himself. Yet the Obama-appointed, McConnell-blocked Supreme Court nominee and current attorney general are seemingly willing to give cover for Trump’s Department of Justice. Earlier this year, Garland’s DOJ announced that it would appeal a decision to release a memo that may have been used by Trump’s DOJ to shield the president from the Mueller investigation. More recently, in the defamation case of E. Jean Carroll, Garland appears to be shielding Trump. In 2020, former Attorney General Bill Barr filed a motion to substitute the United States government for Trump as the defendant in the case, in what seemed to be a clear attempt to use the DOJ to protect Trump from Carroll’s suit, which accused the former president of rape. This motion was stricken by a district court judge, but in a surprising move, Garland appealed the decision in an effort to once again substitute the government for the former president.
Given the unique circumstances of a post-Trump DOJ, Garland should tread fairly lightly. However, these decisions suggest that he’s placing the sanctity of the DOJ as an institution above the necessity to further investigate the former president and the DOJ itself for potential abuse of power and even criminal actions during the Trump administration.
Garland has punted the responsibility of conducting a full review of the Trump DOJ, explaining that he doesn’t “want the department’s career people to think that a new group comes in and immediately applies a political lens.” But the attorney general can’t allow his desire to defend the career employees to eschew the need to bring the actions of one of the most corrupt presidential administrations in American history to light.
Defining a Legacy
This brings us back to the man who enjoyed his chocolate chocolate chip on that sunny day in Cleveland. It’s tempting to buy into the Green Lantern Theory of the Presidency and believe that if Biden really wanted to, he could pass the For the People Act, get Breyer to retire, or ramp up investigations into Trump. Ultimately, however, Biden does not control the actions of Manchin, Breyer, Garland, and their colleagues. And that’s a good thing: It’s the lack of separation of powers and growing unitary power of the president under the Trump administration that Garland’s DOJ ought to be investigating.
Still, Biden sets the tone, and from the start, he’s been more keen on the notion of “unity” than on seeking accountability for the previous administration and truly leveling up to growing GOP anti-democratic threats. And fair or not, Biden’s legacy will be judged on how he responded to the Trump administration and GOP’s trashing of democratic institutions. If Manchin, Breyer, Garland, and others fail to decisively act, the institutions that these institutionalists love will only become further weakened when Republicans regain power.
The current situation demands more than a president who just wants to return to business as usual — a president who just came for the ice cream. Rather, we need an administration ready to face unprecedented challenges to democracy and the rule of law head-on, perhaps with a cone or two in hand.
Image by Dana DeVolk is licensed under the Unsplash License.
