It's Time to Fight Dirty by David Faris

Author:David Faris
Language: eng
Format: epub
Publisher: Melville House
Published: 2018-04-10T04:00:00+00:00

★ 4 ★

The Neutron Option for the Supreme Court

When President Obama nominated Merrick Garland to the Supreme Court, it was one of the saddest farces in living memory. Squinting into the March sunlight and flanked by Garland and Vice President Joe Biden, a determined Obama, after a long, laudatory introduction of his nominee, insisted that he had the right to nominate a justice. It was, surely, the first time that a president nominated a justice to the Court knowing that he would almost certainly never be seated. “To suggest that someone as qualified and respected as Merrick Garland doesn’t even deserve a hearing, let alone an up or down vote, to join an institution as important as our Supreme Court, when two-thirds of Americans believe otherwise—that would be unprecedented,” he said. Garland himself, a mild-mannered, soft-spoken man, choked up when talking about the honor. Maybe he knew what was going to happen to him? Afterward, Senate Majority Leader Mitch McConnell remarked, bizarrely, that “It seems clear that President Obama made this nomination, not with the intent of seeing the nominee confirmed, but in order to politicize it for purposes of the election.”125 The idea that nominating a justice to the Supreme Court, a power clearly reserved for presidents by the Constitution, is an act of “politicization” represented a novel reading of both politics and the Constitution itself. But McConnell’s naked cynicism had become routine during the most bitter fight over a Supreme Court nomination since the circus-like confirmation hearings for Clarence Thomas in 1991. Obama, in fact, had defied the left flank of his own coalition, which wanted a much more radical nominee, preferably a woman of color, to nominate Garland to the Court, hoping that a man who was profoundly uncontroversial in normal times might put enough political pressure on the GOP to force them to confirm. But Obama’s fig leaf was offered to a Republican Party that had changed irrevocably in the past thirty years. Consider this: When Bill Clinton nominated Ruth Bader Ginsburg to the Supreme Court in 1993, she was confirmed 96–3. Just twenty-three years later, Garland, a man clearly to Ginsburg’s right, couldn’t even get a hearing.

Obama’s Olive Garland would, of course, be viciously swatted away, as McConnell and his Senate allies closed ranks and made a stunning gamble—that the Republican nominee for President would win the election, at a time when that person was almost certainly going to be Donald Trump, and then fill Scalia’s seat with another originalist. In February 2016, likely Democratic nominee Hillary Clinton frequently led Trump in hypothetical matchups by double digits.126 And as the summer stretched into the fall, with Clinton holding her lead over Trump for nearly every single day of the campaign, Republicans started to make noises that if they held the Senate but lost the presidency, they would refuse to allow Clinton to fill the seat at all. Republican Senator Ted Cruz, in fact, had mused openly about how the ninth seat was unnecessary, and that

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