the democrats need to do something drastic. joe biden has a shot to make it happen.

the democrats need to do something drastic. joe biden has a shot to make it happen.

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  • December 7, 2016

On Daily Kos, David Waldman sug­gests an out­landish way of get­ting Garland onto the Supreme Court in the brief period when out­go­ing Senators are gone and incom­ing Senators haven’t been sworn in. I ini­tially blew it off as a silly fan­tasy. But…

Maybe the Vice-President and Senate minor­ity lead­er­ship should be con­sid­er­ing it. Why? Well. It’s been awhile since Dems didn’t at least have the pres­i­dency, but let’s do our best to try and remem­ber the dif­fer­ence between the way Democrats and Republicans have behaved in recent mem­ory when in the minority:

Under W, Democrats basi­cally moped around, com­plained a lot, penned thought­ful and ana­lyt­i­cal op-eds, and in Congress they tried to be a thorn in the president’s side.

Under Obama, the GOP didn’t set­tle for being a thorn. They uti­lized every option, and stopped at absolutely noth­ing, to block the pres­i­dent and his agenda. Thorns? More like giant tire-popping spike-strips across the high­way. They played the short game by block­ing bud­gets when­ever pos­si­ble, and they played the long game by focus­ing on local and state elec­tions, which allowed them to ger­ry­man­der them­selves into a last­ing major­ity in the House. (Indeed, as has been pointed out in a num­ber of places1, the Republicans are numer­i­cally in the minor­ity, with an ide­ol­ogy that’s less pop­u­lar than ever, yet they have man­aged to win both houses and the pres­i­dency and they’re walk­ing around say­ing they have a “man­date.”) They have played the game — short, long, and every­thing in between — better.

They uti­lized a strate­gic and dis­ci­plined approach, and it’s paid off. Nowhere is that clearer than with the Garland appoint­ment. And that’s why I think that Dems in the Senate should con­sider not dis­miss­ing the sug­ges­tion that they use some com­pli­cated pro­ce­dural maneu­ver­ing to get Garland onto the bench.

Some Qualifiers

  1. Trying to move any other agenda item using this tech­nique ruins the purity and genius of it. Only the Garland appoint­ment allows the Democratic lead­er­ship to shrug across the aisle and say, “Well, you failed to do your Constitutional duty so you left us no choice. We tried to play fair.” And let’s also not for­get: Obama appointed an older, fairly mod­er­ate jurist because he was indeed try­ing to play fair, and to appeal to mod­er­ate Republicans to buck their party’s lead­er­ship in the inter­est of the greater good. (Turns out “mod­er­ate Republicans” are an extinct species inside the Beltway.) So the Garland appoint­ment has the addi­tional virtue of being less purely par­ti­san.2 Dem law­mak­ers would be throw­ing a Hail Mary to get a mod­er­ate on the bench, not a hyper liberal.

    And they can also say: “We just wanted to give Justice Ginsburg the oppor­tu­nity to retire on her own terms with­out hav­ing to worry quite as much about the influ­ence of the fas­cist bible-thumper who will replace her.”

  2. GOP law­mak­ers’ actions in the past cou­ple years cer­tainly opens them to the accu­sa­tion that they put party before coun­try.3 Maybe Dems might not want to emu­late that behav­ior. But here’s the thing: that stuff didn’t hurt Republicans at the polls. And more impor­tantly: They now have both houses and the pres­i­dency, which places on them the bur­den of lead­er­ship. That bur­den, as the GOP proved when in the major­ity, is not incum­bent on the minor­ity, whose lack of power leaves them with no choice but to resort to extremes. (Unless the major­ity actu­ally cares about part­ner­ship. Ha.)

  3. Nonetheless, this won’t hap­pen. Even after the Republicans had the chutz­pah to sit on a Supreme Court nom­i­na­tion for the bet­ter part of a year, Senate Dems won’t have the chutz­pah4 to beat them at their own game.

Anyway, I’ll stop pon­tif­i­cat­ing and get to the point:

I can think of no bet­ter way for Biden to kick off his 2020 run — and to set the tone for stand­ing up to Trump/Ryan/McConnel for the next four years — than to go out hav­ing had more influ­ence as vice-president in his last few days than any who has ever held the office did in their entire terms.

If there’s any­one who can pull it off, it’s Joe.


  1. My favorite. (back to foot­note in text)

  2. While also being totally, com­pletely, unam­bigu­ously par­ti­san. It’s a Supreme Court jus­tice who’d be a tie-breaking vote for chris­sakes. This is about abor­tion, Citizens United, mar­riage equal­ity, and tons more. Of course it’s par­ti­san. (back to foot­note in text)

  3. See: the bud­get maneu­ver­ing that put the country’s credit rat­ing at risk. (back to foot­note in text)

  4. Or the extrem­ists. The Tea Party did the GOP a big favor by doing the dirty work and let­ting the main party estab­lish­ment stay insu­lated. See: Ted Cruz. (back to foot­note in text)