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The First Constitutional Crisis Happened in 2016 - Sinistral [entries|archive|friends|userinfo]
Josh Fredman

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The First Constitutional Crisis Happened in 2016 [Feb. 1st, 2017|04:30 pm]
Josh Fredman
Now that the Supreme Court fight is on our hands, we have to face an unpleasant truth: Once stolen, a Supreme Court seat cannot simply be “un-stolen.” It can only be “re-stolen.” The Republicans are playing by a different set of rules than the Democrats are. They stole a Supreme Court seat from President Obama, and have put us in the unwinnable position of either re-stealing it from them or acquiescing to them, either of which validates their crime.

In plainer English, we had a constitutional crisis last year, and by both media and public it was relatively unremarked upon as such…presumably because we all assumed that Clinton would win, and that we would retake the Senate.

A constitutional crisis rises above the usual congressional gridlock and obstructionism that Republicans threw up during President Obama’s administration. Instead they put us into a situation where anything we do is going to undermine the credibility of the government. The very nature of a constitutional crisis makes it virtually unresolvable so long as any of the various concerned parties refuse to cooperate in goodwill.

Pragmatically, if we allow the nominee to be confirmed, then, assuming no unexpected deaths or resignations, it will cement conservative dominance of the Supreme Court for decades. And if we do as the Republicans did and refuse to allow the nominee to be confirmed, we’re reinforcing the Republican logic that the first party to violate the Constitution even more is going to be the one who somehow manages to get its pick on the Court.

Realistically, the outcome will be the former: Congressional Democrats almost always cave to Republicans in these kinds of confrontations. To imagine them having the brass to block a nominee for four years is frankly unthinkable.

I expect it will go down in one of three ways: 1) Some kind of meaningless “grand bargain” will be struck that gives Republicans what they want right now in return for an empty promise to reciprocate the next time Democrats are in their position; 2) Democrats will cave altogether; or 3) Republicans will eliminate the power of the minority to block the confirmation.

Which of those actually happens doesn’t matter. In every case, Trump gets to fill President Obama’s Supreme Court seat.

The constitutional crisis upon us is another sign that the nation is unraveling. Republicans have learned to play by a double standard. From taking away citizens’ right to vote, to gerrymandering districts in their favor, and now to stealing seats on the Supreme Court, they know they can get what they want by breaking the law.

Frankly the Republicans directly responsible for this disgrace—the Republican leadership and the relevant committee members—are almost certainly guilty of treason and I personally think they should be put on trial and put to death if convicted. But that’s not going to happen, and even if it did happen it wouldn’t solve our worsening national crisis.

As for what I think Democrats in the Senate should do, I think that the least bad of all scenarios is for them to insist upon a vote on Merrick Garland—who was by all means a compromise nominee on President Obama’s part—and block any alternative Republican nominee indefinitely, including this Gorsuch loser, until such time as the Republicans take away their ability to block the inevitable confirmation. Ordinarily I would never be able to advise this path—after all, we’d be doing functionally what the Republicans did in the first place: stealing a Supreme Court seat—but because of the context it seems like the only choice.

However, even if the Democrats follow this line, the damage is done. In the future we will need to find a way to rectify the stolen Supreme Court seat without vengeance. We cannot let it stand unanswered in the current political climate, for it only emboldens the Republicans to become even more treasonous.
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