If it’s been said once, it’s been said a million times. Pundits and politicians have no ethics.
In light of the election of Donald Trump, many have looked for ways to put Merrick Garland on the Supreme Court despite a GOP majority in the Senate. These outlets include New Republic and notable rag, Daily Kos. Each having proposed a different plan, but there is one little problem. Neither can work, at least not well.
Scheme One: Parliamentary Shenanigans
The first plan is from Daily Kos’ David Waldman. The scheme attempts to take advantage of parliamentary procedure. Immediately after the term of thirty-four Senators ends, the Senate will consist of sixty-six members. Of this sixty-six, thirty-four are Democrats and two are Independents who caucus with Democrats. In the gap before the recognition of incoming senators, Vice President Joe Biden would use his temporary majority to institute the nuclear option and then confirm Garland to the Supreme Court.
This would not work for a wide variety of reasons. Federalist Co-Founder Sean Davis has written an excellent article that details these reasons. The number of issues are vast. They range of from Senate Standing Rule II, and Rule XXXI, to the Constitution itself. These issues by themselves make the scheme impossible and expose Waldman’s extreme ignorance. Which make this plan a bust.
Scheme Two: Recess Appointment
The second plan comes courtesy of New Republic. This idea is less convoluted, actually functional, but equally foolish. The idea is to use the brief adjournment between the 114th Congress and 115th Congress. According to this plan, President Obama would appoint Garland to the court using a recess appointment. If this is done, Garland would be on the court until December of 2017 unless he is somehow confirmed by a GOP controlled Senate.
The main issue with this plan is political and ethical, not legal. A 5-4 progressive majority on the Supreme Court is a small prize for the costs of such a move. The author points this out. If Pres. Obama were to utilize this option, it would be very harmful for Democrats down the line. It would completely undercut Democratic arguments that Trump is violating norms. It would also be harmful for Democratic Senators who are facing uphill battles in 2018.
For Leftists to actually support these plans is hypocrisy at its finest. This is because the same individuals supporting these plans are losing their minds over similar acts committed by the GOP in North Carolina. In North Carolina, the GOP Legislature and outgoing Governor Pat McCrory have taken steps to limit powers of the incoming Democrat, Governor-elect Roy Cooper. Ironically, it mostly concerns the incoming Governor’s ability to make appointments.
Daily Kos in particular is openly rejecting the idea of having ethical standards. Instead of looking at GOP actions in North Carolina as wrong and wanting Democrats to do better, they see them as wrong and want to do worse. To these individuals, it isn’t a question of principle despite moralizing earlier this month about the issue. They claimed GOP actions were “shredding democracy“.
It would seem however, that the Daily Kos and other Leftists are fine with shredding Democracy. They just have to be the ones shredding.