Today in Constitutional Longshots
There has been a sense of denial (in my opinion) by some on the leftward side of politics in the last month regarding Trumps’ ascendancy to the presidency and all that entails. The most prominent examples were seen in various arguments and assertions about how the electoral college could/would forestall a President Trump. Now Sam Wang suggests a way to confirm Merrick Garland to the Supreme Court at the eleventh hour (if not eleventh hour and fifty-ninth minute):
Waldman points out that at noon on January 3rd, 34 senators leave office. At that point, Democrats will have a 36-30 majority – which constitutes a quorum. And the Senate filibuster rule might not carry over from the previous Senate. Waldman suggests that at this moment, the presiding officer, Vice-President Joe Biden, could recognize the top-ranking Democrat, Senator Richard Durbin, who could then nominate Judge Garland for a vote. Waldman has started a petition requesting that they do this.
This idea faces multiple hurdles. For one thing, the Senate parliamentarian would have to agree that the filibuster rule did not carry over from the previous Congress. That would be in keeping with the “dead hand” principle that a Senate should not be bound by previous Senate bodies. It is not clear that a move to vote on Garland would clear such a hurdle.
A bigger hurdle is whether Democrats have the boldness to attempt such a move.
This strikes me as pure fantasy. At a minimum it is the suggestion that some sort of 114.5th Congress (my term, not his) nestled between the 114th and 115th wherein the sitting Senators who did not face election this cycle could constitutionally act after their old colleagues have left office, and before their new colleagues have been sworn in. Even if they could act, it is unclear to me why the “dead hand” principle would apply, since it would still be the 114th Senate acting, just with less members than usual (hence my snark about 114.5th).
I don’t have time for a lot of analysis on this, but I will point out that I keep seeing a lot of commentary along the lines of “if the Democrats only had more will, guile, played hardball, etc…” and it just sounds a lot more like a version of the Green Lantern Theory of politics than it does practical political prescriptions.
It is a cliche, but it keeps going through my head: de Nile ain’t just a river in Egypt.