“They Go Low, We Go High” Didn’t Work: Put Merrick Garland on the Supreme Court

I suspect many very serious people who I usually agree with may not particularly like this essay due to its embrace of a sort of radical legislative tactic that goes against precedent. But I urge them to reconsider their thinking in light of the fact that on this issue, we are forced to consider that Republicans played particularly dirty, and there is a way to ensure they aren’t rewarded for it if we play our cards right.

The language of the Constitution is clear regarding how a Supreme Court justice is supposed to be appointed: The president has the power to appoint a Supreme Court justice. The job of the Senate is to give Advice and Consent on said appointment.

Merrick Garland was chosen by the president. The Senate chose not to give Advice and Consent but instead to pretend that when the Constitution said “the president” has such powers, it only meant “a president who isn’t in his last year or so of service whose views we don’t share.” In other words, they didn’t do their job because of pure partisan politics. And now they’re going to fill try to put a conservative in there.

So what should Democrats do? David Dayen of The New Republic notes that Obama has one final card he can play; he can, thru legislative maneuvering, on January 3rd technically fill the Supreme Court vacancy during the Senate recess until December. But then Garland would leave and Trump would get whoever he wants as a replacement. Obama shouldn’t do this. He should leave on a high note of a president who tried bipartisan cooperation, even if he was rebuffed.

I suggest a different, somewhat more radical approach:

Happily indicate our willingness to work with Trump — if he’s serious about being a president for all the people — on bipartisan infrastructure legislation, fixing inner cities, maternity leave, and helping rural Americans get jobs. But unless Donald Trump’s nominee is named Merrick Garland, filibuster the hell out of whoever he puts up for the Supreme Court, again and again. Remember when Senator McConnell took what Biden said about SCOTUS nominees out of context and justified Republican obstructionism based on the lie that that was precedent, calling it The Biden Rule? Let’s call this the McConnell-Trump rule. McConnell said he considered “it best that the American people decide who” appoints the SCOTUS nominee. But to quote the wise words of our president-elect in 2012, “the phoney electoral college made a laughing stock out of our nation.” We acknowledge that he will be president and therefore gets to do what a president does, but the majority of the American people as opposed to the electoral college voted for President Obama and against Mr. Trump; therefore, accepting the combined reasoning of McConnell and Trump, we will only accept President Obama’s nominee for the SCOTUS unless the American people decide on a different candidate in 4 years. This might feel dirty to some, but they want to use their obstructionism from President Obama’s days to steal a SCOTUS justice from us. We have a way to stop them and in voting a Republican majority into the legislative and executive branches, the nation has indicated it’s okay with some obstructionism, so now is not the time to play nice. They wanna use the nuclear option and end the filibuster of SCOTUS justices, let ’em; the long term trends are against them and we have nothing left to lose.

In the event that the Democratic minority in the Senate cannot hold up the GOP’s SCOTUS nominees, there is another possibility: There is no stipulation in the Constitution that there must be 9 justices. In fact, initially there were 6, but the numbers went up and down in the 19th century, eventually settling on 9 with The Judiciary Act of 1869, one for each judicial circuit at the time. Considering the growth of the population, we ought to — when a Democrat is re-elected — return to an even number as the founders intended. And what better number than the traditional number for a quorum as cited in the ancient Jewish legal tome, the Talmud, that the late Justice Scalia so loved to quote — that number being 10 (see Megillah 23b)— which also would happen to give us the justice who should’ve had a hearing? Or if people can’t stomach the idea of returning to an even number of justices, then we should update the court for the current number of regional circuit courts, 11.

I admit it’s a radical “eye for an eye” proposal. I myself tend to be skeptical of such radical measures. I’m not in favor of court-packing and would be against any proposal to a priori reject Trump filling any other SCOTUS vacancies that might occur during his term. But I don’t think McConnell in cheating the spirit of the constitutional system has left us a better choice and the Dems could do worse than showing they have a spine.

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