Dahlia Lithwick knows her highly focused resistance movement will fail, but she proposed it anyway. In a Monday piece, the Slate legal analyst exhorted Democrats to “obstruct the nomination and seating” of anyone Donald Trump chooses to succeed Antonin Scalia, because “the current Supreme Court vacancy is not Trump’s to fill. This was President Obama’s vacancy and President Obama’s nomination.”
“We are told,” wrote Lithwick, “that we must all work hard, in President Obama’s formulation, to make sure that Trump succeeds. But before you decide to take Obama’s advice, I would implore you to stand firm and even angry on this one point at least…Please don’t tacitly give up on [the seat] because it was stolen by unprecedented obstruction and contempt. Instead, do to them what they have done to us. Sometimes, when they go low, we need to go lower, to protect a thing of great value.”
Lithwick asserted that Republicans stood in the way of filling the seat “for reasons that were transparently false from the outset. At first the senators obstructed…Merrick Garland because they claimed Obama was a ‘lame-duck president’ with only a year remaining in his term…Later, the reasons for obstruction changed when Senate Republicans began to run on the promise to block any nominees put forward by a Democratic president…To reward that by meeting President Trump halfway on his nominees is not sober statesmanship. It’s surrender. Senate Republicans are already crowing that they can have a Justice Ted Cruz named in the coming days and seated by February. They can. But it is not his seat.”
Lithwick commented semi-sarcastically that “the only proper response from progressives today must be that Donald Trump is a lame-duck president with only four years left in his term, and we must let the people decide the next justice for the Supreme Court” and looked at a couple of ways Democrats might throw a wrench into the works (bolding added):
A recess appointment would be the kind of stunt-nomination Obama has eschewed throughout his presidency, guaranteed to embarrass the executive and Judge Garland, who deserved to have us fight for him long before now. But it would at least be a symbol that tantrum can be met with tantrum, and that Democrats will not be rolled. So that’s one option. It’s not a fix. But at least it’s not a capitulation…
…If Senate Democrats attempt to filibuster, Senate Republicans will probably just kill the filibuster for Supreme Court seats…Democrats will live to regret the killing of the filibuster. But whether they killed it or Republicans do it, we knew it would go, and with it all the norms and values it represented…
…For all that I have railed against destructive partisanship directed at fragile courts, I am persuaded now that the only way to answer nihilism is with nihilism of our own.
