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.

FILED UNDER: The Presidency, US Politics, , , , ,
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter


  1. That a professor would make this kind of argument makes me kind of depressed. It’s idiotic for the reasons that you point out and also because all it would take is one Senator to put a hold on the nomination to stop it. It may also violate other Senate rules.

    Additionally, it ignores the fact that President Obama’s nomination expires at the end of the current term of Congress, meaning there would legally be no nomination to vote on. To revive it would require President Obama to cooperate, which seems unlikely, and for Judge Garland to cooperate, which also seems even less likely since he doesn’t seem to be the kind of Judge to insert himself so boldly into a political dispute between the branches of government.

  2. Kylopod says:

    @Doug Mataconis:

    That a professor would make this kind of argument makes me kind of depressed.

    Well, this is the guy who gave Clinton a 99% chance of winning the election.

  3. Mikey says:
  4. Anthony Robinson says:

    @Doug Mataconis: I fully agree with your comment; but more importantly………..
    Stop any talk of Nuclear Weapons Build-up. We are now governed by Idiots! I was an enlisted military during hydrogen bomb testing. This is the quick route to suicide of all life and humanity on earth. TG

  5. gVOR08 says:

    This is silly, as was all the faithless elector stuff. And I do think you’re nut picking a bit. However, outside the context of this sort of thing, I fully agree with the idea that, “if the Democrats only had more will, guile, played hardball, etc…” things would be better. Right off the top, Comey’s ratfwcking was enabled by Lynch and Obama’s fear of appearing political. Has never stopped a Republican for a heartbeat. (Of course they might have been more motivated if Wang hadn’t been telling everybody Clinton was a sure thing.)

  6. Mikey says:

    @gVOR08: Indeed. President Obama wrote a book called “The Audacity of Hope” but the Democrats don’t seem to have any idea what audacity is. The Republicans, on the other hand, have utilized it quite well.

    Being unburdened by scruples does help the GOP, but still.

  7. MBunge says:

    These schemes come from the same place as the inane fuss over the Christmas tweet by Priebus where some prominent idiots thought his reference to celebrating a “new King” was about Trump and not Jesus. Some think that’s an example of secular ignorance of elementary Christian concepts but it’s really about the conviction that they are very smart and the other guys are very dumb.

    I mean, the only way you could even attempt the Garland trick is to make sure that no one has any idea you’re going to do it, which precludes laying out the plan for everyone to see. And the tweet hysterics centered on the assumption that they were cleverly catching Priebus doing some sort of dog whistle, without stopping to consider what calling Trump a “King” or analogizing him to Christ would even be trying to accomplish.


  8. Just 'nutha ig'rant cracker says:

    @MBunge: I take it that you didn’t see any of the “Trump is God’s Man for the hour” stuff on Facebook and know little related to what kinds of things are expected and to what extent Dispensationalism has a role in Evangelical Christianity?

    No, I don’t happen to believe that Priebus was doing a dog whistle–he’s not clever enough to come up with this one, but I do know Evangelicals who thought they heard one when he said it.