President Obama, make a recess appointment to the Supreme Court on January 3rd
To keep the Republicans from stealing Obama’s rightful claim to fill a Supreme Court seat, demand the President make a recess appointment of a great freedom-and-justice loving Justice on January 3.
Arguments for Feisty Democrats, Liberals & Lefties, in the form of a letter to President Obama
Tl;DR Mr. President, don’t get rolled by bullies ! Do the job the people hired you to do: fight for love of freedom, justice and the American Way and do your Constitutional duty: appoint a Supreme Court Justice when you can, on January 3, between annual Congressional Sessions. Do not be gracious with thieves. Strengthen the independent judiciary when it needs it — right now! For your legacy, set the precedent that Presidents punish Congressional misbehavior, and do not just politely demur. Sign this White House petition https://wh.gov/it4xr
Dear President Obama,
Please do not let the Republicans steal the Supreme Court! Do not be gracious with thieves! Do not get rolled. Appoint a Supreme Court Justice in the break that must occur between Congressional Sessions, at the end of this year. If the do-little Senate pretends the inter-Session recess is less than three days (a technicality specified in the June 2014 SCOTUS decision National Labor Relations Board v. Noel Canning), litigate. Playing nice with bullies invites even worse behavior.
You owe us, the American people, to use your powers to make our government work. This is your job as President. Get to work!
The current vacancy is not Trump’s to fill. It’s yours. Say no to contempt and obstruction. And for the sake of good constitutional precedent, it is not only your right but your duty to punish the contempt and obstruction presented to you by the current Congress.
The reasons for the unprecedentedly lengthy blockade this year are transparently false: claiming you are a ‘lame-duck president’ when you had a year to serve (so now is it the case that Trump is a lame-duck with only four years to serve?). Soon, Republicans began to run on the promise to block any nominees put forward by a Democratic president. The Senate Republicans made keeping SCOTUS conservative more important than governance, leadership or the very foundational principle of this republic, an independent judiciary. Do not reward that by meeting them halfway. Do not surrender. Seat Garland or an even more progressive justice (e.g., Elizabeth Warren) by recess appointment. We have to fight. Show that we who voted for you do not always accept tantrums and defiance of institutional norms with graciousness.
And let us make no bones about the state of this democracy: BROKEN. More people voted for Democrats for House of Representatives than Republicans and yet the Republicans are the controlling majority there. Because: gerrymandering, a legal form of corruption and democracy-hacking. Of course, because of the deliberate constitutional over-representation of small states, more people voted for Senate Democrats than Republicans and still the Republicans are the majority party there. And now, the loser President-elect — the runner-up President-”elect” is poised to win the majority of the electoral college.
Now let us put this issue of an independent judiciary and the proper exercise of your presidential power in the context of how the gross inequality of American society combines with the private financing of campaigns: the issues affecting the 0.1% in the influential donor class dominate Congressional attention; our hired help in Congress, who are supposed to be our hired help, for all of us. They spend most of their time succoring the 0.1%, begging them for support, and listening to the concerns of that 0.1% to raise the ludicrous sums required by private financing of campaigns. (Example of a perfect issue for fundraising: balancing the interests of profitable telecommunication companies against the interests of profitable internet companies.) We the people need a justice to mitigate and overturn Citizens United and Buckley v. Valleo, so feel free to make that a litmus test.
Finally, let us not neglect to note that never has a president been elected who so directly ran on a platform of relentless, thoroughgoing rejection of the Constitution itself, and its underlying principle of democratic self-government and individual rights. We are not interested in finding out how a Trump justice does in variants of the Milgram “obedience to authority” experiments. We want you to appoint someone of great integrity and principle to defend the Constitution from authoritarians and its other enemies, now.
We are fighting mad. We want you to fight, President Obama. Let “Luther the anger translator” out! Do not capitulate. Stand up. Encourage Senate Democrats to resist Trump’s nominations, which we expect to include who: Omarosa? His sister? Bannon? Who knows? After a year of safety created by your recess-appointed Justice, there ought to be more evidence of Trump’s ineptitude and more time to find cleavage planes in the majority party’s coalition. Perhaps at that time we will write you again and you will have more standing to ask that you cheerlead Senate Democrats to filibuster the Senate the old-fashioned way, by talking forever, reading the Federalist Papers aloud, with urine bags strapped to their legs.
After the recess appointment ends, it might be time to throw back at the utterly unprincipled Republicans the argument that eight Justices are enough. If we — and you, our hired help — do not impose costs on those who fight unfairly, we incentivize them to do more. It’s that simple. (Other examples of breaches of good governance by the GOP in their Leninist-style ruthlessness: brinksmanship on the debt limit threatening a default, preventing confirmation of the Consumer Financial Protection Bureau director, conducting foreign policy with Iran, and DeLay’s second redistricting of Texas in 2003 to tune the gerrymandering more than once a decade) You promised when you were running for President to advance our interests. So do it, by fierce, necessary and fair methods. The situation is dire because Trump is an avatar of strongman hubris and reckless disregard of the constitutional order. As Garrett Epps wrote,“Trump’s most consistent and serious commitment has been to the destruction of free expression. In other areas, his program is torture, treaty repudiation….murder of innocent civilians…” you know the rest.* Remember your oath? It’s not “just partisan politics” now. We count on you to use your power — as you swore you would — to protect essential constitutional freedoms. Protect Roe v. Wade. Check the power of extreme, reckless and out-of-step right-wing justices like Samuel Alito and Clarence Thomas by appointing a justice who shares your vision, who advances our values, and who can be counted on to protect the American Way’s precious guarantees of due process and equal protection, deliberated and noisily argued under the sheltering wings of the great, tattered First Amendment.
President Obama, deny the Senate Republicans the right to give Trump our rights or those of others who defend themselves. We need you to stand up for yourself and for us. We need it now. Appoint a justice during the Senate recess on January 3. It is your right and your duty.
Join this campaign! Sign the White House petition for a recess appointment ( https://wh.gov/it4xr )
* The full quote ought to stiffen the spine of any self-respecting citizen: “Trump’s most consistent and serious commitment is to the destruction of free expression. (Note that his response to the bombings in New York and New Jersey was to call for a rollback of the free press, on the grounds that “magazines” are somehow instructing the bombers.) In other areas, his program is torture, hostage taking, murder of innocent civilians, treaty repudiation, militarized borders, official embrace of Christianity, exclusion and surveillance of non-favored religious groups, an end to birthright citizenship, racial and religious profiling, violent and unrestrained law enforcement, and mass roundups and deportation.” [Garrett Epps, “Trumpism is the symptom of a gravely ill Constitution” at http://www.theatlantic.com/politics/archive/2016/09/trumpism-is-the-symptom-of-a-gravely-ill-constitution/500831/ ] This letter to the President is heavily based on, and has “patchwork plagiarized” sections from Dahlia Lithwick’s “Republicans Stole the Supreme Court” in Slate: http://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/what_democrats_should_do_about_the_supreme_court.html .
Comments on an Alternative. Regarding the movement to pressure Vice President Biden and the Senate Democrats to confirm Merrick Garland on January 3 during a transient Democratic majority ( https://www.dailykos.com/campaigns/petitions/sign-the-petition-to-joe-biden-and-senate-democrats-confirm-merrick-garland-to-supreme-court-on-january-3rd), we feel that a successfu stunt like this this would set a strange new precedent, by which a few minutes of momentary parliamentary-rules-gaming advantage lead to decisions with decades-long impacts. This would be a terrible precedent for even more undemocratic and anti-democratic maneuverings at the end of future Senate majorities of the party controlling the White House. It is not just a ‘nuclear option’ but a ‘thermonuclear option.’ It is far from clear whether the wrong of the current, admittedly unprecedented, obstinacy by the current Senate majority would not be surpassed by such a frustration-driven maneuver as this Biden-led vote. In its favor, we acknowledge, is the argument that without such a move SCOTUS would be a much weaker brake on the excesses of the other two branches of government, and that the situation may be so very dire that the risk of setting a weird precedent to secure a permanent Justice seat is seen to be worth it by many honorable people.
Authored by Citizens for a Level Playing Field