Your 2021 holiday dinner political survival guide

It seems like this Christmas is all Krampus and no St. Nick. People are in a foul mood, and politically it seems every day brings little offerings from the Caga Tió — from failed legislative measures to calls for packing institutions or sacking individuals in righteous indignation.

Indeed, if you expect your holiday events are going to be an emotional powder keg, just think of dinner for Justice Sonia Sotomayor with the three newest justices after she said a “stench” of politics followed them to the Court. Then there is the happy gathering of the Democrats with senators like Joe Manchin (D-W.Va.) after the White House basically called him a liar, and other members called him the killer of democracy for refusing to support the Build Back Better bill (BBB). Of course, the Republicans have a former president who hates the majority leader and house members who are seeking to sanction each other.

Welcome to Christmas 2021, our hair-triggered holiday season.

It is not surprising, therefore, to read the recent Quinnipiac University poll, which found a universal fear of holiday fireworks over political divisions. Some 66 percent of adults are hoping to avoid any discussion of politics. The problem is that 21 percent say that they are “looking forward” to ​hashing out political differences. That means that even with eight guests struggling to stay on football and fashion, two guests will be actively trying to steer the conversation onto immigration and insurrection.

That means that you have to be prepared.

Below are some Christmas crib notes to get you through holiday dinner. Each topic — abortion, the filibuster, court packing, and gerrymandering — is divided between comments you might expect from Democratic and Republican family members and friends. Keep them handy in the event your gathering suddenly turns from “Whoville” to “whodunit.”

Abortion is about to be outlawed

No, the Supreme Court in Dobbs is deciding whether to return some — or all — of the power over abortion limits to the states. Even if Roe were overturned, it would simply make this a state issue — and most states would protect the right.

Backside fun fact:

Even Justice Ruth Bader Ginsburg criticized Roe as “Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”

Abortion has always been criminal

Actually, some early laws were tied to the “quickening” for the first feeling of movement in a pregnancy. That would occur around the 14th week.

Backside fun fact:

At his confirmation hearing, Justice Clarence Thomas testified that he had never really thought about Roe v. Wade and had no firm view on the matter.

The filibuster is a racist relic that must be eliminated to protect democracy

Actually, it is more a “relic” of the Julius Caesar era than the Jim Crow era. In ancient Rome, the filibuster was used to force the Roman senate to hear dissenting voices. It has been used in the U.S. Senate to protect minority rights and to encourage compromise.

Backside fun fact:

Then-Sen. Joe Biden denounced any termination of the filibuster as “disastrous” and would change “understanding and unbroken practice of what the Senate is all about.” Then-Sen. Barack Obama (D-Ill.) denounced those seeking to eradicate the filibuster and warned that it would “put an end to democratic debate, then the fighting and the bitterness and the gridlock will only become worse.”

The filibuster has been part of our constitutional system since the Framers

Actually, it can be traced to a procedural argument by former Vice President Aaron Burr to get rid of an automatic end to debate on bills in the early 1800s. The rule has been repeatedly modified, as in 1975 when the threshold to end a filibuster was reduced to 60 votes. 

Backside fun fact:

The Democrats under then-Majority Leader Harry Reid crossed the Rubicon by removing the filibuster for votes on non-Supreme Court judicial nominees in 2013. The Republicans then removed the filibuster for Supreme Court nominees in 2017 to end the blocking of the confirmation of justices Neil Gorsuch and then Brett Kavanaugh.

Republicans packed the court first in the Merrick Garland nomination

The Senate has the constitutional authority to vote or not vote on a nominee. The refusal to vote on President Obama’s nominee was not court packing. It did not add justices to force an instant majority in favor of one side.

Backside fun fact:

As a senator, Joe Biden called packing the Supreme Court “a bonehead idea,” “a terrible, terrible mistake.

Court packing is unconstitutional

Actually, the number of Supreme Court justices is not set in the Constitution. The number has fluctuated through the years, with larger and smaller courts — tied to the number of federal circuits. Since justices once “rode circuit” and actually sat as judges in lower courts, Congress would add a justice when it added a circuit — or reduce the court with the elimination of a circuit. Thus, when a 10th circuit was added in 1863, a 10th justice was added at the same time.

Backside Fun Fact:

When the court first convened in 1790 in New York, at the Royal Exchange Building, it had just six members.

Democracy is dying

The claim that democracy is dying without the federalization of elections ignores the fact the Constitution leaves most of the election rules to the states. Each state sets its election rules as a result of the democratic process, and both parties continue to engage in gerrymandering with Democratic majorities this year being challenged over such contorted maps to engineer victories.

Backside fun fact:

The precursor to the Democratic party (Jefferson’s Democratic-Republican Party) actually started gerrymandering. In 1812, Gov. Elbridge Gerry, signed a bill to redistrict Massachusetts for the benefit of his party. In the 1980s, California Democrat Phil Burton boasted that his distortion of district lines to help the democrats was “my contribution to modern art.” Both Democratic and Republican states are gerrymandering this year.

Gerrymandering is what Democracy is all about

Abuses like gerrymandering are inherently abusive and undermine the democratic process. The fact that courts have allowed states to engage in such abuse (unless it dilutes minority voting) is not an endorsement of the practice.

Backside fun fact:

In 1989, President George H.W. Bush, Sen. Mitch McConnell (R-Ky.), and other Republicans pushed for the passage of “legislation aimed at outlawing gerrymandering.” The bill sought “‘neutral criteria’ to be used in drawing the nation’s congressional districts after the 1990 census.” Despite multiple attempts, it was defeated by Democratic opposition.

NOTE: This post has been updated from the original to make it clear that Justice Neil Gorsuch was also confirmed after Republicans changed the filibuster rules.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.