January 3, 2017

MEGAN MCARDLE: Hacking Democratic Rules Isn’t Good Government.

Before the election, the Senate’s refusal to hold a vote on the appointment of Merrick Garland, President Obama’s nominee to the Supreme Court, seemed destined to be a footnote in history. Hillary Clinton would win the election, a different and even more liberal nominee would be put forward (quite possibly to a Democratic-controlled Senate), and after decades of conservative dominance, the Supreme Court would once again tilt leftward.

Trump’s surprise election upset this. Particularly, it upset progressive activists, who thought that Antonin Scalia’s death in office had finally given them a chance at a more activist liberal judiciary. Having written the lede on the way to the ballpark, some of them were not quite ready to tear up their story and start over.

Enter the procedural hacks. What if Democrats went and confirmed Garland anyway?

You may be a bit confused. Republicans hold the majority in this Senate. They will also control the next Senate. How are Democrats supposed to bring the thing to the floor for a vote, much less get enough votes to actually confirm him?

That’s a very good question! The answer some progressives have come up with is that there will be a nanosecond gap between when the outgoing senators leave office, and the new ones are sworn in. During that gap, there will be more Democrats left than Republicans. So the idea is to call that smaller body into session, vote on the nomination, and voila! — a new Supreme Court justice. Alternatively, President Obama could use that gap to make a recess appointment.

Sure. Harry Reid’s breaking the filibuster is going to work out great for them. Why not throw all the other norms out the window, too! Make it all about raw power! Trump won’t be able to handle that!

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