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