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Thursday, November 17, 2016


What's good for the lame duck...

by Tom Sullivan

The Lenox Globe, image by Kattigara via Wikimedia Commons.

With all the concern that we might see Trumpism "normalized," you might think if he'd lost last week that it would have been a victory for normalcy. Hardly. Things have not been normal in this country for decades now, as slowly the rudder and keel that have kept democracy on course have rotted away from below.

Case in point: the transparently ludicrous notion Republicans in the Senate advanced after the death of Justice Antonin Scalia that Barack Obama's nominee for the Supreme Court, Merrick Garland, should not get a hearing, much less a vote. As a “lame-duck president” with a year left in his term, they argued, the “people” should decide who gets to pick the next Supreme Court justice. The Los Angeles Times observed, this was a custom Republicans "fabricated from whole cloth." What they intend, of course, is to oppose any justice nominated by any Democratic president, both being illegitimate no matter what "the people" decide:

Senators have every right to question nominees about their views about the Constitution and their approach to judging, and to vote against those they consider truly outside the mainstream. But to reflexively reject — or refuse even to consider — a sitting president’s nominee because he or she is from the “wrong” party is a recipe for perpetual gridlock.
But America has veered off the map into terra incognita where there be dragons. Desperate times requiring desperate measures, David Dayen suggests a course for Obama that he is unlikely to take:
Come January, President Barack Obama will be consigned to the sidelines as Donald Trump occupies the Oval Office and begins the work of dismantling his legacy. But there is one action that Obama could take on January 3, 2017 that could hold off some of the worst potential abuses of a Trump administration for up to a year. Obama can appoint his nominee Merrick Garland to the Supreme Court on that date, in between the two sessions of Congress.

Based on everything we know about Obama’s temperament and politics, he won’t resort to this. But given how Republicans relentlessly obstructed his efforts for eight years, he would be completely justified in playing one final trump card. And there’s a cost to ignoring that card. The fact that Democrats prefer to maintain governance norms, even while Republicans break them time and again, inescapably pushes the policymaking apparatus of the country to the right.
Dahlia Lithwick seems livid at the prospect that Republicans might get away with obstructing a sitting president from making this appointment, saying flatly "it was stolen by unprecedented obstruction and contempt." She writes:
The only proper response from progressives today must be that Donald Trump is a lame-duck president with only four years left in his term, and we must let the people decide the next justice for the Supreme Court. Less fatuously, it must be to obstruct the nomination and seating of any Trump nominee to fill Scalia’s seat. We will lose. But that’s not the point now. Democrats need to repeat Ted Cruz’s lie that eight justices will suffice. If Democrats can muster the energy to fight about nothing else, it should be this, because even if you believe the election was fair or fair enough, the loss of this Supreme Court seat was not. That seat is Merrick Garland’s.
A recess appointment would be a "grotesque spectacle," Lithwick writes:
If Merrick Garland is to be seated in the coming weeks at the Supreme Court it will be by way of an Obama recess appointment, if there is a recess, and in that case he will be seated for a year and no more. It will all be a grotesque spectacle, demeaning the players and diminishing and compromising the public esteem for the court. A recess appointment would be the kind of stunt-nomination Obama has eschewed throughout his presidency, guaranteed to embarrass the executive and Judge Garland, who deserved to have us fight for him long before now. But it would at least be a symbol that tantrum can be met with tantrum, and that Democrats will not be rolled. So that’s one option. It’s not a fix. But at least it’s not a capitulation.
What's good for the lame duck, right? This travesty has gone on long enough. Democrats will lose, as Lithwick says. But fighting and losing is more palatable than getting rolled (or rolling over). It speaks to character. Whatever their reservations about Trump, a lot of Americans voted for him because he promised to stick it to the bastards. Americans won't vote for wimps. If Democrats hope to regain control in Washington, they had better stop acting as if they are.