Mitch McConnell determined he would not allow President Obama to fill Anthony Scalia’s seat. I have entertained what Obama could’ve done, had he been able to see the future. I suspect that he regrets not giving the Senate a deadline on a vote, for “advise and consent.” He nominated Garland in Spring, he could have said, “You have until October 1st to vote on Merrick Garland, and if you do not vote and reject Merrick Garland prior to that time, I deem that to constitute consent to the pick.” On October 1, 2016, if McConnell held firm, Obama could have written a presidential finding and order, that having given the Senate a deadline under the constitution, a fair one, and hearing no “objection,” order Justice Garland be seated. He would have handed the order to Garland, who could walk down the street to the Supreme Court building, hand them the order, and ask them where they have set aside his quarters.
It would have gone up the line in challenges, and then guess who would have voted in the end? At worst it would have been a 4-4 vote.
That type of “hardball” politics is what the Democrats best be “fixin'” to play right now, or there’s no hope for two generations. My daughter, now 10, will not grow up in a nation with the reproductive rights that her mother and her grandmother, possessed.
“Okay,” you say; “What do they do?”
Glad you asked.
One: Declare absolute war right now. No nominee to be seated until after the November elections. McConnell will laugh. Therefore, the Democrats must do all they can to ensure that no legislation about anything, not a single bill, with a single dollar attached, passes through the Senate. None.
Two: Approach both Bob Corker and Jeff Flake, two retiring Republicans who have spoken out strongly against Trump and ask them to join the Democrats, or at least become “independents.” Appeal to patriotism, their vanity and sensibilities. They stand between us and a functioning democracy, because the country won’t tolerate another Trump apologist on the bench. That would level the playing field to 50-50
Three: Approach Sens. Collins and Murkowsky, as Republican women who surely cannot envision a world where back-alley abortions are “normalized” in the United States ever again. I’ve persuaded “pro-life” people (I am somewhat “pro-life” in that I don’t believe it to be a moral answer, I just find a law prohibiting it to be more immoral) that abortions will occur whether the law allows them or not. Rich girls and women will go see their gynecologist about “women’s issues” and have a small “procedure” to fix it, as was the case for decades prior to Roe. Poor women will go to anyone, perhaps themselves with the coat hangar. Democrats MUST reach out to Republican women Senators who can be reasoned with and look for agreements.
Four: Openly invite anti-Trump Republicans to form a third party, do anything to break the clout of the the “block” that follows along with Trump.
And most desperately:
Five: If needed, and “constitutional war” is declared, promise, utterly promise, that the next Democratic platform will include a provision by which the first time the Democrats have control of the White House and both houses of Congress, pledge to add two justices to the Supreme Court. One justice to make up for the seat stolen from Merrick Garland, and one seat to make up for the Russian-aided election of Donald Trump. (I am assuming that much much more will come out about Russian assistance and meddling in our election).
The Constitution mandates that there be a Supreme Court, it does not mandate how many members the court must have. FDR grew so angry at the Supreme Court striking down his “New Deal” programs that he threatened to “stack” the court by nominating two more justices. He was taken seriously enough that lo and behold, the next “New Deal” case to come up went his way, “the case in time that saved nine.”
Sound crazy?
Of course it does. But McConnell sounded crazy when he promised to never hold meetings or a vote on Judge Garland, making up a rule on the fly to prevent Obama from replacing Anthony Scalia. We can’t be the responsible party with this one. With this, we must fight like they fight, frame a principle as something that will not happen, and then do not let it happen. Period.
