Something for our obstructionist friends in the GOP to consider; a strangely unnoted but extremely real potential roadblock in their plans to stall their way to another generation of Supreme Court domination. A path to their defeat if even if they succeed.
Imagine if you will...yeah, it’s gonna hurt a bit but bear with me...a world where the party of McConnell succeeds in holding off all outside pressure and refuses to confirm, or even consider, a relatively moderate, traditional slightly left-of-center Supreme Court nominee. Exactly the sort of names the administration is currently floating.
Imagine if you will...yeah, this part is gonna hurt a lot...world where Donald J Trump narrowly wins the presidency, but disarray in the GOP, his lack of coattails, and a favorable for the Democrats 2016 results in a narrowly Democratic Senate. Or even a tie.
Now, the President and Senate Democrats can wring their hands and wait for Trump to name Judge Judy or Sheriff Joe Arpaio to the court...or take advantage of the historically unique opportunity this will present to them.
See, the President is inaugurated on January 20...but the new Congress begins 17 days earlier, on January 3.
On that day rules for the 115th Senate are adopted, on a simple majority vote. On that day...and for that matter until January 20...Joe Biden still presides over the Senate and has the power to cast tie-breaking votes.
So even 50 Democratic Senators equals control of the Senate...and the Senate can adopt, on that very day, rules that eliminate the filibuster on Supreme Court nominations. Democrats control the committees, if only for 17 days. Blue slips are ignored, secret holds are eliminated, if they so choose.
There is nothing, absolutely nothing, to prevent President Obama from sending a nominee to the Senate that very day.
And, I might add, the most openly liberal, pro civil rights, abortion rights, marriage rights, voting rights, human rights nominee he can find.
And all the public hearings, endless debate, fru fru and political theater that surrounds modern Supreme Court vacancies can be cut off at the source.
In historical terms, it was once common for Court nominees to be approved in a matter of days.
Is this optimal? Of course not. Might Democrats fear giving up power and leverage they may want in the future? Might they fear reprisals in a few short weeks if they truly are dependent on Joe Biden’s tie-breaking role when a GOP vice-president takes his place?
Of course they will. They’re congressional Democrats and bold action hasn’t exactly been their stock in trade since the days of LBJ.
But giving up this Supreme Court seat for a generation, with a Republican President in place to name the next justice, is pretty much giving up the game.
A kangaroo Republican court deciding issues of vote suppression, reapportionment and campaign donations will simply voter ID and Citizen’s United us out of existence.
It’s not a question of political courage; it’s political self-preservation. A failure to act boldly and outside the box would be nothing less than political suicide.
Hell, possibly planetary suicide, with five or possibly more down the road Republicans deciding legal issues related to global warming.
And there is nothing...absolutely nothing...that the GOP could do in this scenario to actually prevent action. They can howl, they can scream, they can promise unholy Senatorial retribution in three weeks and ballot box vengeance down the line.
But they can’t stop it.
How likely the specifics that would set up this scenario are to occur is of course open to argument. But how unlikely was the election of Trump a year ago? Or a mealy-mouthed collaboration of a presidential candidate, his governor brother, his state co-chair and sitting state secretary of state and a rabidly partisan and pliant Supreme Court majority would combine to steal the presidency in a judicial coup d'état?
Of course I hope that none of it...the baseless obstruction, the election of the most thoroughly unqualified candidate ever to the highest office in the land...comes to pass.
But should we find ourselves facing this scenario it is something we should damn sure give some consideration before January rolls around.