Democrats Need to Take the Risk and Appoint Merrick Garland

Vice President Biden, Justice Garland, and President Obama

One of the most popular moments, for Democrats, of the entire campaign was Michelle Obama's speech at the DNC.  Moving, riveting, the First Lady is arguably the most popular figure in the party, and she memorably stated "when they go low, you go high."  It was repeated consistently by Hillary Clinton throughout her campaign, frequently being used as a counterpunch against the disgusting behavior of her opponent, particularly when he would attack Sec. Clinton, her family, and her supporters with gauling gusto.  It was a moment that felt like it would work, since it fed into the campaign's ideals-that America was better than Donald Trump, that Democrats could run the country with proficiency as well as dignity, unlike the Republicans.

Well, we all saw how that turned out, and I think it's time to rethink this strategy a bit because this has been the mantra of the Democrats since the 2000 election, and it is not working.  If anything, it's crippling the party and the country is paying the price for the Democrats insisting they are a party with morals, because it frequently feels like they're trading in their backbone to maintain those morals.  The phrase "we can't do that because it'll start a constitutional crisis" has been uttered so often that it might be worth acknowldging that we're in one.

After all, we have seen the destruction, almost exclusively by the Republicans of many political norms in the past sixteen years (the Democrats had a couple of moments with the judicial filibuster, but those are spare).  We have seen Republicans willingly attack war heroes like Max Cleland and John Kerry as being liars and terrorists.  We have seen them validate fringe radicals like Steve Bannon and Alex Jones.  We have seen them embrace white nationalism, regularly espouse lies on the campaign trail in a way that was unheard of previously, and in 2016 they nominated a man who gropes women, mocks the disabled, and regularly celebrates brutal dictators and actually quoted Mussolini on the campaign trail.

I am not suggesting that the Democrats do any of these things, for the record, but it's worth noting that the bar is low to go high from, and there are some tricks that Republicans did that actually paid off major dividends in recent years.  Worth noting is that in the mid-Aughts, the Republicans, not the Democrats, were the ones who were going to toss away the filibuster to get through judicial appointments-it was only after the Democrats caved that they kept it around to see another day.  We saw the Republicans shut down the government, hold up a Supreme Court nominee for longer than any time in history (despite him arguably being the most qualified person ever to be nominated to the Court), and governing so preposterously that our national credit rating actually went down just because they wanted to not pay our national debt, potentially sinking the markets and ruining the economy.  They repeatedly lie about Democratic policy proposals (remember the death panels?) and are willing to question Democratic leaders in opaquely racist and sexist ways.

Again, I'm not espousing bigotry here, but what I am saying is that the Democrats have let the Republicans run over them for years, and it's not the GOP who pays the price.  We wonder why Democrats don't vote in Midterms or how Bernie Sanders was able to gain so much populist support in the primaries, and it's this: Democrats wish that they could win more often when it actually matters.  It seems like the Republicans simply care about winning, while Democrats only care about winning in a specific way, and then they insist that we're inclusive to the GOP or else the voters are going to punish us.  I hate to break it to you, but the voters have already punished us, repeatedly.  We aren't winning new voters by, say, simply eliminating the filibuster but we sure as hell have a lot of people (rightfully) stating that we aren't willing to fight for them.  The Democrats should not resort to lies, prejudice, criminal behavior, or praising foreign dictatorships to win.  But a couple of parliamentary tricks-I'm up for it.

Where am I going with this, you may ask?  David Waldman recently proposed an idea that has much of the liberal social mediasphere humming.  Essentially it boils down to a weird moment that happens on January 3rd, where the Democrats briefly (we're talking a matter of a minute or two) technically have control of the Senate and the Senate presidency.  You can click on the article for specifics, but essentially how it works is this: on January 3rd, at noon, all senators who are in Class III (those elected or reelected in 2016) are technically not in the Senate anymore.  Traditionally what happens here is that the President of the Senate (which is Joe Biden, in his role of Vice President) would then recognize the Senate Majority Leader (Mitch McConnell) and they would inaugurate the new Senate Class, and the Senate would (depending on Louisiana this weekend) likely usher in a 52-48 Republican Senate majority.

Except there is a possibility that it could work out differently in order for Merrick Garland (and potentially all of President Obama's other delayed judicial nominees) to be nominated.  At that point at noon, the Republicans don't actually have the majority of the 66 senators who were not up for reelection on November 8th, the Democrats do; it breaks down to 34 Democrats, 30 Republicans, and two independents who caucus with the Democrats (Angus King and Bernie Sanders), so essentially 36-30.  Therefore, the Senate Majority Leader, in theory if not in practice, is Dick Durbin (Sen. Schumer, the incoming Democratic leader, is a Class III senator, so he would not be a "senator" yet).  If Biden were to recognize Durbin, he could challenge the election of the incoming senators, and then proceed to a vote on Garland's nomination, as well as those of the other delayed judicial nominees.  Since a quorum would be a majority of the senators currently in office (which the Democrats would have provided everyone is up for this), they could theoretically confirm all of the nominees, then vote to overturn Durbin's challenge (so that the senators could take their seats), and the judicial nominees would stand.  There are some questions about the legality of this, particularly whether the senators in the chamber who are in Class III actually have to take an oath or not, or whether Durbin could challenge the elections on some ground without the entire chamber erupting into a gigantic fistfight (I mean that literally), but this is actually a pretty sound theory from a parliamentary procedure perspective.

There are a few reasons why the Democrats wouldn't do this.  One, it carries inherent risk.  The senators that are going to have to be part of this stunt include dark red state senators like Heidi Heitkamp, Joe Manchin, and Jon Tester, all of whom may not be willing to take a risk of pissing off Trump supporters two years before they go to the ballot box.  I would argue, however, that in two years no one's going to care about how Merrick Garland got on the court, specifically because the election will be a referendum on Trump, so if the Democrats think for longer than two seconds they'll realize this is a low-risk activity in that regard.  The second argument against it is that it's a slippery slope situation-what's to stop the Republicans from doing this in two years or four years, and perhaps holding the Senate down to 2/3 for longer?  Hell, what's to stop them from simply rejecting Democratic senators in general?  These aren't totally preposterous questions, but let me ask you this-if the shoe were on the other foot, if Hillary Clinton had just beat Mitt Romney, and Ruth Bader Ginsburg's seat had been open for seven months, you think there wouldn't be a push by the GOP to get that seat filled with a conservative nominee by any means necessary?  If you think otherwise, I have a bridge in Brooklyn for you.

The reality is that Garland and other judicial nominees have waited more than enough time, and are qualified for their positions.  President Obama had the right to fill Scalia's seat, and Merrick Garland has earned the right to be on the court.  This is a fact.  To ignore the profound implications of not having Garland on the court would be stupid-it will be a miracle if Trump doesn't have a Supreme Court vacancy in the next four years.  If it's Ginsburg or Breyer, the Democrats will have forfeited the Supreme Court for thirty years.  Gay marriage, abortion rights, voting rights, gun safety, public health care-these are all impossible if we go to a 6-3 Republican Supreme Court.  THIS IS WORTH THE RISK.  President Obama's greatest flaw as a political strategist has always been that he wants to win "the right way."  It's why the ACA ended up being a lukewarm version of the Democrats' original plan and still no Republican supported it.  This is not the time to be naive.  This is the time to take advantage of something we should rightfully have anyway by virtue of winning the 2012 election.  Biden, Durbin, and the Democratic senators owe us a strategic fight in order to win this confirmation.  It will be very hard for me to say with a straight face that midterms matter anymore if the Democrats aren't willing to try and win even when the chips are down, rather than just admit defeat because they can't win the way they wanted to win.  Don't make me someone who only cares about who wins the White House-actually fight, Democrats!