Saturday, April 22, 2017

Opportunity For Democrats In A Constitutional Disaster

Well, as you all know by now, it happened.  Senate Democrats successfully filibustered the nomination of Neil Gorsuch to the Supreme Court, under the then-prevailing rules of the Senate. And Mitch McCONnell, taking exception to one Democratic filibuster in the wake of the near-record number of filibusters he and his Republican colleagues launched, did what you would expect an end-justifies-the-means politician to do:  he changed the rules.  He did this, of course, on top of an unprecedented year-long blockade against a nomination made by the previous (Democratic) President.  And thus, McCONnell, Donald Trump, and the conservative moment won, at the expense of the comnity of the Senate, the judicial independence of the Supreme Court, and the general sense of fairness that undergirds any real understanding of the Constitution and the government it was meant to create.

And Gorsuch wasted no time in taking his seat in such a way as to disgrace himself and telegraph the level of harm that his vote on the Court will achieve.  He started at his swearing-in ceremony by talking about having "inherited" his position on the Court from a "great man."  Leaving that assessment of Antonin Scalia alone for now, that comment is unintentionally revealing when it comes to Gorsuch's views of constitutional government:  a property right that belongs exclusively to conservatives.  And, after a spectaularly rocky first day on the Court, he confirmed that limited understanding of the law by voting for the execution of a man whose attorney was drunk in court.

But give McCONnell credit.  By his standard, he point a point of the board for his party and his President, in the wake of the latter's epic failures (the failed travel ban, the collapse of the anti-Obamacare movement, the collapse of tax reform, etc.).  So far, GOP 1, Democrats 10 and counting. It's no longer a shutout.

Truth be told, in fact, Democrats should consider themselves set free by all of this.  McCONnell is too cluelessly focused on short-term results to understand that what he has ultimately done by setting fire to establish precedent is, in fact to create a new precedent.  And a potentially dangerous one for him and his party.

In effect, McCONnell has created a world in which the advice and consent that the Constitution requires the Senate to provide with respect to Constitutional nominees is whatever the Senate wants it to be.  No due process is required.  Not a hearing.  Not even a vote.  In effect, the process can be no process at all.

Indeed, it could be any number of possibilities.  It can be much more than just refusing to hold hearings and a vote.  It could be trial by combat or ordeal--concepts with a great deal of tradition behind them, and therefore with great potential appeal for conservatives.  It could be a principled refusal to accept any nominees from a particular President--based, for example, on perceived sexual abuse by that President.  Anyone who saw Trump put his hands on his grown-up daughter's derrierre on television at last summer's Republican National Convention knows what I'm talking about.

There's so much more.  What about a bill to expand the number of Supreme Court justices, timed to allow a Democratic President and Senate to make their appointments?  The number nine isn't sacred; the Constitution specifies no minimum or maximum number of Justices.  What about a bill to limit the jurisdiction of the Supreme Court?  No constitutional barrier to that, either.  What about withholding funding for Gorsuch's seat?  Again, no law agin it.

All that's lacking to make any of this happen is a willingness for Democrats to understand that pacifism is no strategy against an opponent with no respect for the rights of anyone but themselves. This nation was born in battle.  Its greatest advances have frequenly been born in battle.  It's time for Democrats to learn how to fight.  Most of all, it's time for them to want to fight.  The people they represent want and need them to do so, now more than ever.  Are they listening?

Let's hope so.  And let's hope they see the opening that McCONnell and his colleagues have opened up for them.

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