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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