Who'd Be a Democrat?

Last weekend, at the end of the show Hamilton, a member of the cast addressed Vice-President-Elect Pence:

            “We, sir, are the diverse America who are alarmed and anxious that your new administration will not protect us — our planet, our children, our parents — or defend us and uphold our inalienable rights, sir. But we truly hope this show has inspired you to uphold our American values and to work on behalf of all of us. All of us.”

Pence, himself, did not react but his future puppet master went wild on Twitter, suggesting harassment on the part of the cast while conveniently forgetting the First Amendment. Mr. Trump, some would say your Vice-President-Elect got off a lot lighter than your post-Civil War predecessor at the Ford Theater!

Democrats throughout America have taken quite a beating for the past week or so. Democratic supporters have looked on the wreckage of the Party of Roosevelt, Truman and Johnson and wept openly. Hillary Clinton said she just wanted to curl up with a good book and President Obama drowned his sorrows by travelling the world, meeting up with other world leaders whose careers, too, will end in tears. Everyone he met knew the future former President cannot do a thing except have “nice rides” in the Presidential plane and helicopter before he leaves office. But is this right. Can he really do nothing?

In my last blog, I wondered why no law suit had been commenced against the Senate for refusing to give a hearing for Obama’s nominee, Merrick Garland, for the Supreme Court vacancy. I have found out that Steve Michel, a New Mexico lawyer, filed a suit to force the US Senate Republican leaders to act on Obama’s nomination. Michel argued that US Senators’ powers were diminished by their leaders’ denial to vote on a vacancy for the Supreme Court. Unsurprisingly, the federal judge dismissed the case. I suspect the suit was doomed from the start.

The recent election results mean that after 20^th January, 2017, the Republicans will control the executive and legislative branches of the American federal government. They will soon have a Republican ideological majority on the Supreme Court bench, assuming Trump’s nominee gets the Senate’s post 20^th January nod.

However, there is a way for Mr Obama to get Judge Garland on the bench. Indeed, the President has the legal right to take action which would thwart the Republicans for a year and possibly prevent the Court ruling in aid of right wing and anti-feminist causes.

Article II of the Constitution grants to the President power to fill all vacancies that may happen during the Recess of the Senate by granting commissions which shall expire at the end of their next session. I make no claim to expertise in American constitutional law but it seems Obama does have power to force through Garland’s appointment to the Court for a limited period. What an act of defiance that would be by a man who has been mauled by Republican congressional majorities for years.

New Republic recently published an article setting out the rules, pros and cons of such an action. There is time between the old and new Congress sessions in January, 2017, to make the appointment. If made, Garland would remain on the bench until the end of the first session of the 115^th Congress in December, 2017. But the appointment would have to be made on 3^rd January, 2017. The president’s recess appointment powers were significantly constrained by a 2014 Supreme Court ruling under which the President cannot appoint individuals to fill vacancies if the Senate holds “pro forma” sessions every three days. These sessions merely gavel in and gavel out the Senate chamber but have the practical effect of keeping the Senate active, thereby blocking the presidential recess appointment power. Well, rules are rules. However, the decision does not apply to the congressional inter-session period.

There is precedent for a Supreme Court recess appointment, for example, in 1856, when William Brennan began his court tenure with a recess appointment. But would the President become political and take the opportunity? The downside is it would make the new President and the new majority in Congress angry, unwilling to compromise or to seek any accommodation with congressional Democrats. But is there evidence that the Republicans will reach across the aisle? Recent precedent seems to say no. In 2006, the Republicans seized power in both Houses of Congress at a time when it held the White House and had an ideological majority on the Supreme Court. President Bush spoke of spending his “political capital” without reference to the sensibilities of those on the opposite aisle. The Democrats could take heart. The 2008 elections gave the Republicans a black eye!

There is another factor. In the unlikely event that the President decides to make the recess appointment, would Garland accept it? He is only 64 and his career as a judge would end if and when the Republicans removed him at the end of the Session in December, 2017. One wonders if America’s media will uncover any recent exchanges between the President and the Judge. If so, look out for fireworks.

If no recess appointment is made, that is not the end. To keep a vacancy on the Court, the Democrats could wait until the new Senate is asked to approve a nomination and filibusters Trump’s pick. Problem: there is a Republican majority in the Senate. The right to filibuster could be lost in the future if there is an up and down majority vote on the Senate floor to change the rules and eliminate the filibuster on Supreme Court appointments.

I have gained a clear impression that Americans have elected sulky teenagers to Congress, immature men and women who have forgotten they are elected for all the people and should act likewise. Instead, there is noise indicating yet another fearsome, partisan period where, for example, minority and female rights will be attacked. Americans have surely elected an over-sensitive, bullying, non-politician to the White House, one who, in his initial cabinet and adviser choices, is showing a desire to make America white again.

No doubt, Mr. Obama would infuriate many if Garland is appointed but it would help keep the more rapacious Republicans at bay for a year. It will also endear President Obama, a fine and dignified man, to at least half the country and help shore up a legacy that needs some defending.

 

 

PS. The 2016 election isn’t over yet. In Louisiana, there is a run-off race for the Senate seat next month. The Democratic candidate is behind in the polls but were he to win, the Republican majority would be a razor thin 51-49, with the VP having a casting vote, if needed. The politics never ends.