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Monday, December 09, 2019 {{ new Date().getDay() }}

Reprinted with permission from AlterNet.

Donald Trump has selected Federal Appeals Court Judge Neil Gorsuch to take a seat that constitutionally was President Barack Obama’s to fill.

The Senate should have seated Obama’s nominee, Judge Merrick Garland, and then turned to Trump’s nominees as vacancies occurred. But that does not appear to be the political world America lives in, where Senate Republicans, led by Majority Leader Mitch McConnell, have stolen an open seat that would have tilted the court’s balance away from a right-wing majority.

In their article, “The Garland Affair: What History and the Constitution Really Say About President Obama’s Powers to Appoint A Replacement for Justice Scalia,” Robin Bradley Kar and Jason Mazzone comprehensively review virtually every past Supreme Court nominations in our history and compile the data cited below.

“There have been 103 prior cases in which—like the case of President Obama’s nomination of Judge Garland—an elected President has faced an actual vacancy on the Supreme Court and began an appointment process prior to the election of a successor,” they write. “In all 103 cases, the President was able to both nominate and appoint a replacement Justice.”

Let’s get down to some numbers that put Senate Republicans’ judicial coup in context.

293: Number of days Republicans stonewalled President Barack Obama’s nomination of Merrick Garland to the Supreme Court before the Senate term expired.

103: Number of Supreme Court vacancies filled by elected presidents. That’s right, 103 in a row.

8: Vacancies filled during election year. Eight times in our history, Supreme Court vacancies occurred during an election year and the elected presidents’ nominees were approved.

6: Number of unelected presidential Supreme Court vacancy nominations denied. Supreme Court vacancies were denied when the sitting president was not elected: Vice President John Tyler’s nominations after death of President William Henry Harrison; VP Millard Fillmore’s nominations after the death of President Zachary Taylor; and VP Andrew Johnson’s nominations after the assassination of Abraham Lincoln. President Obama was elected by the people, twice.

3: Lame-duck nominations denied. There were also three nominations made by sitting presidents post-election day, after the new president had been elected. John Quincy Adams tried after Andrew Jackson was elected; James Buchanan tried after Lincoln was elected; and President Hayes tried after James Garfield was elected. All were denied. President Obama made his nomination of Garland long before the election of Donald Trump.

84: Years since last election-year nomination. The last time there was a Supreme Court vacancy during an election year, President Hoover’s nomination was approved.

9,498: Average days in the tenure of recent Supreme Court justices (since 1970). That’s right, since 1970, Supreme Court justices who have retired, had tenures averaging 26.1 years. So, this is a quarter-century: a big time decision.

1,461: The number of days Democrats should be willing to wait for the Senate to approve President Obama’s rightful nomination of Merrick Garland to the Supreme Court.

1,151: Number of days Democrats will have to wait during Trump’s term for Republicans to respect history and the right of every elected president to fill vacancies to the Supreme Court that occur during their term. Since Republicans have invented a new, first-time-ever, no-election-year approval precedent, Democrats will only be waiting 1,151 days

2: Number of balls and ovaries most Republicans have when it comes to something as important as the next Supreme Court vacancy. Precedent be dammed, they simply were not going to allow President Obama to appoint another Supreme Court judge that could shift the court. Period. Republicans have basically said to Democrats, when we are in charge, let’s play by the rules, and when you are in charge, all is fair in love and war. Translation: our way or the highway.

Unknown: Democrat Senators with balls and ovaries. Senator Minority Leader Chuck Schumer suggested to MSNBC’s Rachel Maddow, when asked about the stolen Supreme Court seat, there would be some opposition to Republican nominations, but nothing near the absolute resolve expressed by Republicans.

Will Elizabeth Warren, Bernie Sanders, Corey Booker, Al Franken, and the Gang of 49 step up and start the fight for our country on the steps of the Supreme Court? Will they show the toughness that Americans respect from their leaders? (Voters care a lot more about conviction than facts and policy.) Will they say enough is enough?

The Big Picture: Judicial Coup

The Senate should approve Obama’s rightful nominee, and respect 200 years of history and the last 103 nominations and the rightful balance of powers. When the next Supreme Court vacancy occurs, it becomes fair to approve one of your nominees. To be clear, Democrats are not refusing to approve Republican Supreme Court vacancies, but they are now out of sequence – and when they approve ours, we will approve theirs.

And waiting an extra 1,000 days, for a decision that will last 26 years, is not a problem. We’ll wait. The importance of this decision cannot be overstated.

Short of devastating Obamacare, climate legislation, or World War III, this quite simply may be the biggest decision Democrats make during the Trump term. Republicans ignore history, put their boots on Democrats’ necks, and stall a rightful nomination for 293 days, and then fully expect Democrats to bend over, start playing by the rules again and approve their nomination?

Two wrongs don’t make a right, you say? You got it wrong. I am not suggesting Democrats refuse to approve a Trump nominee, when a Trump Supreme Court vacancy exists. I am simply saying, Republicans must fill the seat that is rightfully in the hands of President Obama, before that can happen. The only time in our history when an elected presidents’ nominations were denied, were when they were made after the new president was elected. Not relevant this time.

President Obama’s pick still must be defended.

Yes, Democrats have rejected nominees. But when a nominee was rejected, the elected president always had time to make a second appointment, and the elected president always had one of his appointments approved—103 times in a row. If Republicans don’t like Merrick Garland, vote him down.

Want to win back some Trump Democrats? Democratic senators can start by showing some gumption, some resolve, and some principles. History is on your side. Be tough and regain some respect in the heartland.

IMAGE: President Barack Obama (L) announces Judge Merrick Garland (R) as his nominee to the U.S. Supreme Court, in the White House Rose Garden in Washington, March 16, 2016.  REUTERS/Kevin Lamarque

Photo by expertinfantry/ CC BY 2.0

At this moment, the president of the United States is threatening to "throw out" the votes of millions of Americans to hijack an election that he seems more than likely to lose. Donald Trump is openly demanding that state authorities invalidate lawful absentee ballots, no different from the primary ballot he mailed to his new home state of Florida, for the sole purpose of cheating. And his undemocratic scheme appears to enjoy at least nominal support from the Supreme Court, which may be called upon to adjudicate the matter.

But what is even worse than Trump's coup plot — and the apparent assent of unprincipled jurists such as Supreme Court Justice Brett Kavanaugh — is the Democratic Party's feeble response to this historic outrage. It is the kind of issue that Republicans, with their well-earned reputation for political hardball, would know how to exploit fully and furiously.

They know because they won the same game in Florida 20 years ago.

During that ultimate legal showdown between George W. Bush and Al Gore, when every single vote mattered, a Democratic lawyer argued in a memorandum to the Gore team that the validity of absentee ballots arriving after Election Day should be challenged. He had the law on his side in that particular instance — but not the politics.

As soon as the Republicans got hold of that memo, they realized that it was explosive. Why? Many of the late ballots the Democrats aimed to invalidate in Florida had been sent by military voters, and the idea of discarding the votes of service personnel was repellent to all Americans. Former Secretary of State James Baker, who was overseeing the Florida recount for Bush, swiftly denounced the Democratic plot against the soldiers, saying: "Here we have ... these brave young men and women serving us overseas. And the postmark on their ballot is one day late. And you're going to deny him the right to vote?"

Never mind the grammar; Baker's message was powerful — and was followed by equally indignant messages in the following days from a parade of prominent Bush backers including retired Gen. Norman Schwarzkopf, the immensely popular commander of U.S. troops in the Desert Storm invasion that drove Saddam Hussein's army out of Kuwait. Fortuitously, Schwarzkopf happened to be on the scene as a resident of Florida.

As Jeffrey Toobin recounted in Too Close to Call, his superb book on the Florida 2000 fiasco, the Democrats had no choice but to retreat. "I would give the benefit of the doubt to ballots coming in from military personnel," conceded then-Sen. Joseph Lieberman, Gore's running mate, during a defensive appearance on Meet the Press. But Toobin says Gore soon realized that to reject military ballots would render him unable to serve as commander in chief — and that it would be morally wrong.

Fast-forward to 2020, when many of the same figures on the Republican side are now poised to argue that absentee ballots, which will include many thousands of military votes — should not be counted after Election Day, even if they arrived on time. Among those Republicans is Justice Kavanaugh, who made the opposite argument as a young lawyer working for Bush in Florida 20 years ago. Nobody expects legal consistency or democratic morality from a hack like him, but someone should force him and his Republican colleagues to own this moment of shame.

Who can do that? Joe Biden's campaign and the Democratic Party ought to be exposing the Republican assault on military ballots — and, by the same token, every legally valid absentee ballot — every day. But the Democrats notoriously lack the killer instinct of their partisan rivals, even at a moment of existential crisis like this one.

No, this is clearly a job for the ex-Republicans of the Lincoln Project, who certainly recall what happened in Florida in 2000. They have the attitude and aptitude of political assassins. They surely know how to raise hell over an issue like military votes — and now is the time to exercise those aggressive skills in defense of democracy.

To find out more about Joe Conason and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at