What do Merrick Garland and Donald Trump have in common?
I realize, it is a question that seems absurd on its face—it's hard to imagine two more dissimilar figures. But here and now, in the glare of twenty-four hour a day coverage, the candidacies of both men are being decided. How they and their opponents conduct themselves could have far-reaching implications that survive well beyond 2016, perhaps even for a generation.
Let’s start with Trump. Clearly, he’s not going to get the nomination. Since last June he’s been a one-man circus, redefining how to run a campaign, dominating the coverage with a testosterone-soaked appeal part nativist Le Pen, part big-man Berlusconi. Now, as the act begins to get a little frayed, as his gaffes build up, his readiness seems more uncertain, and his threadbare organization shows itself to be inadequate, he is losing momentum. The non-partisan Iowa Electronic Markets now show him with less than a 50% chance of getting the nomination—down from over 80% as recently as March 1.
So, why is this a problem? Trump, whatever his strengths, shouldn’t be President. The people are choosing, right? Democracy can take a lap.
Except, it’s not quite true, or, more accurately, it’s not the whole story. First of all, while some of the hormonal bloom might be off the Trump rose, the primal allure is still there, as are the votes. Trump’s support is surprisingly adhesive—it is ebbing somewhat, but unlike what happened to Carson, Jeb, Walker, and Marco, it hasn’t just disappeared. He is still leading, still in the high 30’s in national polls, and he is still going to win a number of primary states, and remains likely to come into Cleveland with the greatest number of pledged delegates.
But once there, he will be an unwelcome stranger to most of the invited guests. Trump is going to get his clocked cleaned at the convention, as the professionals show the amateur how it’s really done.
It starts with the smug tactical brilliance of Ted Cruz. In state after state—even those Trump won in, Cruz is using every trick in the book to corral delegates—picking them off where he can, convincing state-level politicians to throw their lot in with him, and packing delegations—even Trump delegations—with Cruz supporters. It is an astonishing fact that literally hundreds of people will go to Cleveland pledged to Trump through the first or second ballot, yet when Trump doesn’t get to 1237, will immediately switch their loyalty and give their votes to Cruz.
Yet, Cruz couldn’t possibly do it alone. He is being aided and abetted by the active help of the GOP, which is not only clearly allowing this poaching, but providing logistical, procedural, and monetary support. They aren’t doing it out of love—rather it’s a tactical move to stop Trump, to be followed (in their minds) by a chaotic convention where the exhausted delegates will turn to someone more appealing—like Paul Ryan. The heavens will open, celestial choirs will sing, and a united GOP will march out, hymnals in hand, and slay the Hillary dragon.
Pardon my cynicism, but I have real doubts about this. The Establishment has been so consistently wrong this season, there is no reason to believe this time will be different. Cruz is already ahead of them. My best guess is that Rubio will end up using his delegates for currency, and with those, the ones Cruz won cleanly, and the “Trojan Horse” Trump delegates, Teddy will get the nomination on the third round. The GOP’s Ryan fantasy is probably just that.
What is fascinating about this story of an entire party dispensing with any pretense of fairness in the race for the job of most powerful person on Earth is that it is playing out, in all it smallness, against a backdrop of the oddest Supreme Court nomination in modern memory.
Enter, the anti-Trump, the uber-qualified and apparently un-confirmable Merrick Garland. In Judge Garland we have the man who worked with and then replaced John Roberts on the second most powerful court in the Federal System, someone widely respected across the aisle, a bridge-builder and consensus maker, a clear and convincing moderate, and someone who is unquestionably fit to be a Supreme Court Justice. Other than that, he’s awful.
By choosing Garland, Mr. Obama has managed to do what Mr. Obama does best—make the left wing in his party crazy for picking someone older and mainstream when they wanted a young liberal—while simultaneously driving Republicans nuts for picking anyone, much less someone this able. Nothing enrages conservatives more than the sight of Barack Obama exercising the Constitutional authority of his office, except perhaps when he does it well. They simply cannot abide it, and the day he leaves, they will sink to their knees in gratitude.
But Garland creates a special problem for Republicans—it eliminates the primary crutch they were hoping to use—that the seat of the venerated Justice Scalia could not be fouled by an ultra-leftist tush in a black robe. The public knows it as well—a strong majority supports hearings and confirmation. Instead, the GOP has been forced to fall back on recycling old grievances, on bluster, contempt and threats. Particularly astonishing was the spectacle of 82 year-old Senator Grassley excoriating that great liberal, Chief Justice Roberts, and demanding that he never utter the word “nine” until after the 2016 election.
And yet, all that sound and fury would be of no value if the Republicans didn’t have the same advantage they have in the Trump fight—control of the rules, and a willingness to use them. The Constitution is not a document with extensive granularity. For the Supreme Court, the President nominates, the Senate gives its advice and consent. That is the extent of Article Two—and as has been repeated over and over and with increasing vehemence by conservative “scholars” who have taken the lead, nothing requires that the Senate confirm anyone, vote on anyone, or even hold hearings. What's more, there is no specific timeframe prescribed by the Founders to act. It could be 11 months. Could be 18. Could be four years or eight, or until someone you like gets elected, whenever that is. Republicans, as we all know, are strict constructionists, and if they say no, it’s no.
Absurd? Of course it is—the Founders assumed that a democratic system had to be underpinned not just by compromise, but integrity and good faith dealing. Irrational? Not in the least, just hardball, played by people with a demonstrable disdain for any result they don’t agree with, and the willingness to use every means at their disposal. Brute force is working with Trump, and it will work with Garland. For 2016 at least, the GOP has picked its path. It is neither pretty, nor democratic, but it is crudely, if dishonestly, effective.
What exquisite irony it is that the supporters of Merrick Garland may meet on the same field of unfairness as that of Donald Trump. And hold cold, how sepulchral the hand that holds the grifter’s knife to their collective backs.
Will the electorate make it a double-edged sword?
Michael Liss (Moderate Moderator)
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