First, consider the Supreme Court vacancy. Anthony Kennedy, appointed by Reagan but generally regarded as a moderate, has chosen to retire. The fact that his replacement will be appointed by a Republican President and Senate may or may not have influenced his thinking.
I'm not the first to observe that if your political system hinges on one octogenarian's decision to retire, it is a stupid political system.
Be that as it may, the reason things have come to this pass is the Democrats have lost and lost and lost.
They've lost state legislatures and governorships, which enabled gerrymandering, which helped them lose the House of Representatives; although even if the system were totally fair, they lost the popular vote in 2016. They've lost in the Senate. And as we all know, they've lost the Presidency.
So it happened that they were left clinging to the last feeble line of defence to safeguard progressive policies, namely the personal whim of an eighty-one year-old judge.
The Democrats can (and do) whine about the injustice of it all, but the fact is, the current composition of the Supreme Court pretty much reflects election results over the relevant timescale.
Supreme Court Justices are nominated by Presidents, and they serve for life. Presidents know this. So far, they haven't quite been able to appoint unqualified teenagers to the Court, in the fashion of a Renaissance Pope naming Cardinals. But they usually appoint candidates in their 40s or 50s, who can expect to serve for a good 30 years.
30 years ago, it was 1988. Reagan was President, and he appointed Kennedy to the Court. Since then, four elections have been won by Republicans (1988, 2000, 2004, 2016) and four by Democrats (1992, 1996, 2008, 2012). The 5-4 partisan split before Kennedy retired isn't some monstrous injustice.
At this point, Democratic partisans may whine about winning the popular vote in 2000 and 2016. Yes, it's unfortunate Al Gore and Hillary Clinton weren't elected President. Many things would be different then; but the fact is they both lost, against absolutely terrible opponents.
Now, Kennedy is stepping down, and absent a miracle the partisan balance of the court will be 6-3. It's still not a shocking outcome. If you flipped a coin 9 times, the chance of getting at least 6 heads is 25%. In poker terms, that's not a royal flush; it's far more likely than getting two pairs.
Lacking any material power, the Democratic leadership is reduced to appealing to a sense of fair play and consistency.
The last Supreme Court vacancy arose in 2016, with the sudden death of Antonin Scalia. President Obama was entitled to nominate a replacement. He did so, in the person of Merrick Garland.
Going against all custom and precedent, the Republican majority in the Senate blocked Garland's appointment for almost a year. Then, Trump won the election and appointed Neil Gorsuch.
As the reliably excellent Ed Burmila points out, there's nothing to stop Trump and the Republican majority in the Senate from appointing anyone they please to replace Kennedy.
Dianne Feinstein, senior Democratic Senator, tweeted this:
4 months away from an election, there should be no consideration of a Supreme Court nominee until the American people have a say. Leader McConnell set that standard when he denied Judge Garland a hearing for nearly a year, and the Senate should follow the McConnell Standard now.— Sen Dianne Feinstein (@SenFeinstein) June 27, 2018
The desperately sad thing is, she probably thinks this is a really good point. She's really scored a hit on the Republicans; or so it will be said at the Washington cocktail parties. But why should the Republicans even notice this jibe?
It makes me imagine the court of the medieval Chinese Emperor.
The high ceremonial positions are held by eunuchs, who dress in silken finery, enjoy rare delicacies, and spend much of their time scheming for the Emperor's favour and trying to poison one another.
They receive word that the Mongol horde of Genghis Khan is approaching, pillaging and burning as it goes.
The eunuchs believe it's terribly clever to point out the Mongols didn't get the proper entry permits when they crossed the Great Wall. They note that previous barbarian raiders accepted bribes in order to go away.
The eunuchs fail to grasp the nature of their opponents:
They. Do. Not. Care.
The advancing army does not care about bribery, or negotiation, or entry permits.
What they want is everything.
They cannot be stopped by custom, precedent, or good manners; only by strength greater than their own.
The eunuchs fail to grasp this, until their heads are placed on spikes atop the walls of the burning palace.
(To be continued)
Part 2; Part 3
Post a Comment