Hacking Democratic Rules Isn’t Good Government

On a list of topics of broad general interest to the reading public, “parliamentary procedure” used to fall somewhere between “competitive badminton” and “advanced topics in topiary design.” Now, however, it is having a moment in the limelight, thanks to the latest installment of “Supreme Court Wars: The Never-ending Story.”

Before the election, the Senate’s refusal to hold a vote on the appointment of Merrick Garland, President Obama’s nominee to the Supreme Court, seemed destined to be a footnote in history. Hillary Clinton would win the election, a different and even more liberal nominee would be put forward (quite possibly to a Democratic-controlled Senate), and after decades of conservative dominance, the Supreme Court would once again tilt leftward.

Trump’s surprise election upset this. Particularly, it upset progressive activists, who thought that Antonin Scalia’s death in office had finally given them a chance at a more activist liberal judiciary. Having written the lede on the way to the ballpark, some of them were not quite ready to tear up their story and start over.

Enter the procedural hacks. What if Democrats went and confirmed Garland anyway?

You may be a bit confused. Republicans hold the majority in this Senate. They will also control the next Senate. How are Democrats supposed to bring the thing to the floor for a vote, much less get enough votes to actually confirm him?

That’s a very good question! The answer some progressives have come up with is that there will be a nanosecond gap between when the outgoing senators leave office, and the new ones are sworn in. During that gap, there will be more Democrats left than Republicans. So the idea is to call that smaller body into session, vote on the nomination, and voila! — a new Supreme Court justice. Alternatively, President Obama could use that gap to make a recess appointment.

The first idea started on Daily Kos, where I initially saw it. I didn’t pay it overmuch attention, as my second law of politics is that “At any given time, someone is suggesting something completely insane.” Usually these ideas go nowhere. This one, however, has gotten a bit of traction; the idea of a nanosecond nomination vote has shown up [on] the Princeton Election Consortium…, and endorsements of a recess appointment have appeared in the New Republic and New York magazine.

It’s hard to know where to start with this festival of wrongness. The idea behind the nanosecond nomination seems to be that there are two discrete Senates, the old and the new, with a definite gap between them; yet that somehow, though neither the old nor the new Senate exists, there are senators, who can hold a vote on something — a sort of quantum Senate that pops into and out of existence depending on the needs of the Democratic Party.

The legal grounds for a recess appointment are even weaker, because in 2014 the Supreme Court ruled that recess appointments require at least a three-day gap — not three femtoseconds — between sessions to be valid. Even if that were not the case, Jonathan Adler argues that the new Republican Senate could adjourn sine die, ending the recess appointment a few weeks after it was made. Since Garland would have to vacate his appellate court seat, all Democrats would succeed in doing is opening up another judicial appointment for Trump.

But this is almost quibbling compared with the deeper problem: Even if these moves could work, they wouldn’t work. The people proposing these ideas seem to imagine that they are making a movie about politics, rather than actually doing politics. The hero’s quest is to get a liberal Supreme Court, but they are stymied until — third act miracle! A daring procedural caper! The gavel slams down on Merrick Garland’s “Aye” vote … cut to him taking his Supreme Court seat … fade to black as the audience cheers.

In the real world, of course, there’s a sequel, called “Tomorrow.” And what do the Republicans do then? The answer, alas, is not “stand around shaking their fists at fate, while the moderates among them offer a handshake across the aisle and a rueful ‘You got us this time, guys.’”

If Democrats tried this sort of thing, there would be national outrage — mostly from Republicans, but also from some moderates. When procedural hacks work, it’s because they’re too boring for readers to understand, or care, and therefore take place well outside of the media spotlight. This, by contrast, is pretty easy to understand, and what most voters will understand is that Democrats are trying to do an end run around the results of a legitimate election. Republicans could use that outrage to undo whatever it was Democrats thought they were accomplishing — by, for example, increasing the number of seats on the Supreme Court. (Democrats may recall this maneuver; Franklin Roosevelt tried it in the 1930s).

What’s most worrying, however, is that intelligent people are discussing this stuff. Over the last decade, we’ve spent more and more time on these sorts of procedural hacks. Filibusters to prevent judicial nominations — and parliamentary maneuvers to weaken the filibuster. Debt ceiling brinkmanship — and whether Obama could mint trillion-dollar platinum coins to get around it.

We have become less and less interested in either policy or politics, and more interested in finding some loophole in the rules that will allow one party or the other to impose its will on the country without the messy business of gathering votes and building public support. It started with the courts, but it certainly has not ended there.

Each procedural hack slightly undermines the legitimacy of the system as a whole, and makes the next hack more likely, as parties give up on the pretense that winning an election confers the right to govern, and justify their incremental power grabs by whatever the other party did last. Democrats who say that Republicans have forced them to this by refusing to vote on Merrick Garland may be right — but then, so are Republicans who say that they were forced to it by earlier escalations on the Democratic side, for this increasingly vicious game of tit-for-tat stretches back to the Democratic-led judicial wars of the 1980s.

What matters is not who started it, or the last outrage committed by the other side. What matters is who ends it. Unfortunately, while both sides quite agree that it needs to end, they also agree that it should end only after they themselves are allowed last licks. As long as both sides cheer their own violations while crying foul on the other side, the escalation will continue — until we no longer have a political system worth controlling.