This is beautiful. A group of liberal activists are hoping to use a bizarre manipulation of Senate procedure to install Merrick Garland to the Supreme Court. If the Democrats succeeded, it would be the most spectacular self-own since South Carolina tried to secede.
Basically, the plan is that Vice President Joe Biden (the presiding officer of the Senate) would interrupt the procedure for swearing in senators elected in 2016. The Republicans have a majority in both the current and the next Senate, but, with a third of the seats unoccupied, the Democrats would have a one-vote majority. The idea is that the vice president and this momentary, fraudulently obtained Senate Democratic majority would secure Garland a lifetime spot on the Supreme Court and produce a liberal Supreme Court majority.
There is nothing surprising about liberal activists wanting to abuse legislative norms. There is nothing surprising about partisan Democrats being willing to use undemocratic means to secure a Supreme Court majority that will impose liberal policies through . . . undemocratic means. What is so wonderfully surprising is the pure, self-defeating stupidity.
The entire conceit of this weird proposal is that Republicans have already trampled on all legislative norms relating to the judiciary by refusing to hold a vote on Garland, so Democrats are now licensed to do their worst. The Republicans would have no tools with which to retaliate. The problem is that that is not even close to the truth.
There is still a strong norm against Court-packing by expanding the number of Supreme Court justices. The number of judges on the Supreme Court can be expanded by a simple majority vote in both house of Congress. Come January, the Republicans control both houses of Congress and the presidency, but Court-packing just isn’t done. Just like refusing to swear in duly elected members of the Senate in order to secure the appointment of a Supreme Court justice just isn’t done.
If they wanted to follow the Democrats in . . . expeditiousness, the congressional Republicans could pass a bill to expand the Supreme Court by six justices just as soon as Trump became president. Then the Republican Senate majority could approve Trump’s Supreme Court appointments without hearing or debate, the filibuster and norms about fair dealing having been safely killed off by Vice President Biden and his associates.
If they were to go through with this lunatic Biden proposal, the Democrats would be opening themselves up to a much more radicalized Republican party and a much more Trumpist Supreme Court. They would be trading in a momentary and notional liberal Supreme Court majority for an actual, Trumpist Supreme Court majority that would persist until the next time Democrats simultaneously controlled the House, the Senate, and the presidency.
Democrats think they have it bad now, but in one sense it doesn’t matter whom Trump appoints to replace Scalia. The swing justice will still be Anthony Kennedy. Sometimes liberals win with Kennedy, sometimes they lose. Would liberals be happier if the swing justice was Corey Lewandowski? Because that is where this is headed.
Past the proud sociopathy of the Biden proposal is the incompetence. The supporters of the Biden proposal are advocating burning down all the norms that protect minorities just as they hand over unified control of the government to their opponents. And their opponents are led not by poor, gentle Jeb Bush but by a man who is reputed to be a vindictive demagogue.
Incoming Senate minority leader Chuck Schumer is a smart guy. I suspect he will have the proper response to anyone who suggests the Biden proposal.