Will The Democrats Give The GOP Any Payback For Merrick Garland? Meet Joe Donnelly

I’ve never been very enthusiastic about Obama’s final Supreme Court pick, Merrick Garland, but he was the president and he’s the one who gets to pick Supreme Court nominees, not me. And not the opposition party. But the opposition party figured out how to do it— and it looks like they’ll get away with it— basically because Chuck Schumer shoved unelectable Senate candidates down Democratic voters’ throats, particularly Patrick Murphy (FL), Katie McGinty (PA), Ted Strickland (OH), Patty Judge (IA) and Ann Kirkpatrick (AZ). Despite polling showing that Joe Sestak would have won the Pennsylvania Senate race against Toomey, we’ll never really know for sure if democracy would have given the Democrats a Senate majority. But we do know that Schumer’s authoritarian approach backfired and guaranteed— against all odds— a Senate majority for the GOP.

On Christmas Eve the NYTimes editorial board decided, for the record, to remind their readers about the stolen Supreme Court seat:

Soon after his inauguration next month, President-elect Donald Trump will nominate someone to the Supreme Court, which has been hamstrung by a vacancy since the death of Justice Antonin Scalia in February. There will be public debates about the nominee’s credentials, past record, judicial philosophy and temperament. There will be Senate hearings and a vote.

No matter how it plays out, Americans must remember one thing above all: The person who gets confirmed will sit in a stolen seat.

It was stolen from Barack Obama, a twice-elected president who fulfilled his constitutional duty more than nine months ago by nominating Merrick Garland, a highly qualified and widely respected federal appellate judge.

It was stolen by top Senate Republicans, who broke with longstanding tradition and refused to consider any nominee Mr. Obama might send them, because they wanted to preserve the court’s conservative majority. The main perpetrators of the theft were Mitch McConnell, the majority leader, and Charles Grassley, chairman of the Judiciary Committee. But virtually all Republican senators were accomplices; only two supported holding hearings.

The Republican party line — that it was an election year, so the American people should have a “voice” in the selection of the next justice — was a patent lie. The people spoke when they re-elected Mr. Obama in 2012, entrusting him to choose new members for the court. And the Senate has had no problem considering, and usually confirming, election-year nominees in the past.

Of course, Supreme Court appointments have always been political, and the court’s ideological center has shifted back and forth over time. But the Senate has given nominees full consideration and a vote even when the party in power has opposed a president’s choice. That is, until this year, when Republicans claimed that though the Constitution calls for the Senate’s “advice and consent,” senators aren’t obligated to do anything. This is a bad-faith reading of that clause, even if there is no clear way to force a vote. It certainly obliterates a well-established political norm that makes a functioning judicial branch possible. As Paul Krugman wrote in his column on Monday, institutions are not magically self-sustaining, and they “don’t protect against tyranny when powerful people start defying political norms.”

This particular norm is of paramount importance because the court’s institutional legitimacy depends on its perceived separation from the elected branches — a fragile concept in the best of times. By tying the latest appointment directly to the outcome of the election, Mr. McConnell and his allies took a torch to that idea — an outrageous gambit that, to nearly everyone’s shock, has paid off. But while Republicans may be celebrating now, the damage they have inflicted on the confirmation process, and on the court as an institution, may be irreversible.

The slope is both slippery and steep. If Republicans could justify an election-year blockade, what’s to stop Democrats in the future from doing the same? For that matter, why should the party controlling the Senate ever allow a president of the opposing party to choose a justice? Indeed, in the weeks before the election, Senate Republicans were threatening, with the encouragement of leading conservative thinkers, never to confirm anyone to fill the vacancy if Hillary Clinton won.

Can anything be done to repair the harm? One step — as obvious as it is unlikely — would be for Mr. Trump to renominate Mr. Garland. Conservatives will scoff, but they know he is as qualified for the job as anyone in the country. When Mr. Garland was floated as a possible choice for the Supreme Court in 2010, Orrin Hatch, the senior Republican senator from Utah, called him a “consensus nominee” and said there was “no question” that he would be confirmed with bipartisan support. That’s partly why Mr. Obama nominated him this time, and also why Mr. McConnell denied him a hearing — he knew he couldn’t prevent a Senate vote once Americans saw an eminently qualified and reasonable jurist testify on live TV.

At the very least, Mr. Trump could follow President Obama’s example and pick a centrist — someone who commands wide respect and operates within the bounds of mainstream legal thought. That would be an appropriate gesture from a man who lost the popular vote by more than 2.8 million votes and will enter office with the lowest approval ratings in recent history.

The shameful, infuriating actions of the Senate Republicans won’t be ignored in the history books. In a desperate effort to keep a conservative majority on the court, they rejected their own professed values of preserving American institutions. There’s little hope that they will come to their senses now, but they and Mr. Trump have the power, and the obligation, to fix the mess they created.

I want to answer a question the Times editors posed. They asked “what’s to stop Democrats… from doing the same,” blockading whichever nominee— sure to be less qualified and less of a consensus type candidate than Garland— Trump pukes up?

A couple of weeks ago NPR’s Audie Cornish interviewed one of the embodiments of the reason why the Democrats won’t be blockading anything: Blue Dog Joe Donnelly, a bright-of-center political coward from Indiana who is an accidental senator from a red state up for his first reelection test in 2018.

Donnelly was a putrid House member and knew he was about too be defeated in 2012. He had one of the worst voting records of any Democrat in the House and there was no real enthusiasm for him in his district, which had, in any case, been gerrymandered by the Republican legislature specifically to defeat him. Inn 2010, Jackie Walorski had nearly defeated him. He managed two squeak by with a 2,500 vote win (48.2-46.8%) win, having spent $1,983,118 to Walorski’s $1,316,805. The stop was ready to outspend him by whatever it took in 2012. But instead of marching to his doom, he threw the ultimate Hail Mary pass— and won. Well, he didn’t so much as win as luck out with a crackpot GOP nominee, tea bagger Richard Mourdock, who had managed to defeat Richard Lugar in the Republican primary. Mourdock proven to be as unhinged as Donnelly needed him to be— and as the GOP Establishment feared he would be. Mourdock blundered from one crazy, outrageous statement to another and Donnelly shocked everyone by winning the Senate seat 1,281,181 (50.04%) to 1,133,621 (44.28%). A Libertarian taking 145,282 votes (5.67%).

Donnelly is a pro-NRA, anti-Choice, anti-LGBT, anti-immigrant throwback. When Cornish pressed him on his conservative voting record, Donnelly responded “I'm a proud Blue Dog, absolutely.” You tell me, does this guy sound like he’s going to stand firm against Trump’s nominees right before his reelection campaign kicks in?

CORNISH: Now, Republicans, particularly Republicans in the Senate, decided early on to essentially stand fast against President Obama. And that worked pretty well for them. Should Democrats become the party of no during a Trump administration?

DONNELLY: Well that seems pretty un-American to me - what they did. My job isn't to represent the Democrat Party or the Republican Party. It's to represent Hoosier families. I thought that was shameful behavior. And my job is to do what's right. And that's what I'm going to try and do.

CORNISH: You talked about Hoosier families. But Trump won your state by nearly 20 percent. So does it sound like they agree with his agenda? And what does that leave for you, as a Democrat in the Senate?

DONNELLY: Well, I think that the people in our state want to see more jobs, more opportunity. And they want to make sure that Washington listens to them. Look, I have an agricultural community that's second to none in the world. And every time they tried to move forward, it seemed the EPA was working against them in-- turn after turn.

And so they've always said, we want clean water. But we want to be part of the solution. And so I think that was a message that the folks not only in my state but around the country— want people to listen to them and know that they're here, know that they have a lot to contribute and make our country stronger.

CORNISH: You mentioned concerns about the EPA, the Environmental Protection Agency. When you look at these cabinet choices by the incoming administration, which one are you worried about? Because there are Democrats who look at them and say, you've got picks who want to abolish the departments they may be leading, who want to roll back major Democrat-penned legislation like Obamacare. Which one do you think Democrats should challenge?

DONNELLY: I'm very concerned about the Tom Price nomination because he talks about privatizing Medicare… He talks about privatizing Medicare. You know, our seniors shouldn't have to check their stock balance before they can get knee surgery. And we're going to stand up for our seniors on this issue. I'm also very concerned about the nominee named today, Rex Tillerson, for secretary of state. I'm very, very concerned about the Russian connections that we're seeing, the potential damage to our national security and the lack of experience. And so I'm concerned about both of those. I think that General Mattis is a good choice in Defense, though.

CORNISH: You know, when you were first elected back when you're elected in the House, it was with Blue Dogs, right? There was, like, a whole coalition of red-state Democrats. That's been decimated.

DONNELLY: I'm a proud Blue Dog, absolutely.

CORNISH: Now you're here in the Senate with, again, just a handful of other Blue Dogs. This is not a group of Democrats that's growing. Can Democrats regain the ground that they've lost with voters in states like yours?

DONNELLY: When we talk to them about issues of importance to them, when we talk to them about their family and making sure that we can have better skills training for their kids to get good jobs - that we can try to keep jobs here in America rather than seeing them go overseas - that we'll fight for our friends and neighbors. We'll fight for the people of Muncie and Richmond and Evansville. When they hear...

CORNISH: But you don't think Democrats have been doing that up until this point?

DONNELLY: Well, not when we've had trade deals that have ship jobs overseas, absolutely not. What we need to do is stand up and fight for our people in our states.

And Donnelly isn’t even the worst of the right-of-center Democrats from red states up in 2018. Obviously he has an “F” from ProgressivePunch, but his overall record for the just ended session (48.19) is actually worse than Dianne Feinstein’s, Tim Kaine’s, Mark Warner’s and Tom Carper’s. The only Senate Dems with more putrid records are Joe Manchin (44.58), Claire McCaskill (42.68) and Heidi Heitkamp (40.96). Donnelly’s voting record is way closer to Rand Paul’s than it is to even moderates like Debbie Stabenow, Gary Peters or Ron Wyden, let alone to progressives like Bernie, Mazie Hirono, Tammy Baldwin or Elizabeth Warren.