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OMG how I love Dahlia Lithwick’s latest on how Obama should respond to Republican intransigence on the Merrick Garland nomination.  Sheer brilliance:

When it comes to the Supreme Court, Democrats have long been in a severely disadvantaged posture with respect to Republicans in terms of the “Intensity Gap.” This simply means that for decades now, Republicans have organized their electoral politics around the composition of the high court—they have voted about it, fundraised over it, and managed to persuade their electorate that this is a vital issue in both presidential elections and Senate contests…

Now one problem with the Intensity Gap is that Democrats continue to be mainly just confused and confounded by the GOP intransigence that has led to this chaotic state of affairs on the high court. Never before have we encountered a simple refusal to have meetings with a nominee, much less a refusal to have hearings or an up or down vote…

Another problem for Democrats is that in addition to the Intensity Gap, the party also suffers from what I will call the current Insanity Gap. This second gap involves one party’s willingness to throw away any sense of pride, integrity, or even long-term strategic thinking in favor of acting like toddlers having a tantrum next to a Snickers bar in the checkout line. [emphasis mine] That they continue to do so despite the Democrats’ refusal to join in is in some ways impressive, even if it makes for a complete lack of meaningful dialogue. The logic behind the GOP position here is that the public either has grown to expect daily tantrums from their Republican representatives, or that maybe the tantrum will eventually become effective by the time November rolls along.

I have myself been flabbergasted by the sheer weightiness of the Insanity Gap, and my own inability to make “but this is so very stupid” into a compelling argument to overcome it. Perhaps, then, the only real alternative to GOP derangement on the question of holding hearings for Garland is to unspool a little corresponding derangement on the left…

Judge Garland has been nominated by President Obama. Senate Republicans refuse to give him a hearing. After a suitable period of time—lets say by the end of September of 2016—Judge Garland should simply suit up and take the vacant seat at the court. This would entail walking into the Supreme Court on the first Monday in October, donning an extra black robe, seating himself at the bench, sipping from the mighty silver milkshake cup before him, and looking like he belongs there, in themanner of George Costanza.

Really, what could the other justices do? They aren’t going to have the marshals tackle him. He is, after all, the chief judge of the second most important court in the land, respected across the ideological spectrum. And in the absence of a Senate hearing on his nomination, one certainly might infer that the Senate has by now consented to his presence there. (If you’re the law review type, here is a very plausible argument that this is actually the case.) But more urgently, this is the kind of action—OK, “stunt”—that would draw attention to the fact that just because GOP senators want to pretend that Obama’s Supreme Court nominee is invisible, doesn’t mean that he has to play along. By my playbook, Garland could show up for work in a black robe every day in October, participate in oral arguments with a handful of incisive questions in November, and even start to write a few modest opinions in December, demonstrating how real his nomination is. By January, nobody will even remember that he never got a hearing!

How awesome would that be.  Garland wouldn’t do this, of course, but it would be the greatest.

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About Steve Greene
Professor of Political Science at NC State http://faculty.chass.ncsu.edu/shgreene

2 Responses to This

  1. itchy says:

    I know Lithwick’s is a flippant suggestion, but it does seem that the way appointments like this should work is more along the lines of “If anyone has any reason to oppose this, let them speak now or forever hold their peace.”

    The absence of specific objections should constitute consent.

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