There’s not much left to say about Donald Trump. You all know what he is, and why you need to do everything you can to defeat him. So let’s talk now about the battle for control of the United States Senate. If Republicans win control of the Senate, there is a very good chance that they will plunge our country into a constitutional crisis worse than anything we’ve seen in a very long time.
A number of Republican senators, ranging from the supposedly rational John McCain to the certifiable Ted Cruz to the exceptionally vulnerable Richard Burr (Go Deborah Ross!) have proclaimed their desire to double down on the already unprecedented obstruction of a sitting president’s Supreme Court nominee. Actually, they wouldn’t be doubling so much as taking it to an exponentially higher level.
The new plan: block any nominee put forth by President Hillary Clinton. Period. As Cruz put it, there “is certainly long historical precedent for a Supreme Court with fewer justices.” That’s not true, at least not since Reconstruction, but since when does Ted Cruz care about the truth? Other conservative ‘thinkers’ have also sought to lay the groundwork for this disgraceful proposal.
Current Senate Majority Leader Mitch McConnell earlier this year declared that the American people would decide who should nominate the replacement for deceased Justice Antonin Scalia, and that the Senate would then consider that nominee. Of course, we only have one president at a time, and the Senate completely abdicated its constitutional duty by denying President Obama’s nominee a hearing and a vote. But now that the Cruz-McCain-Burr plan is out there, what is McConnell saying? Nothing.
That silence leaves open the possibility that our constitutional system of government will completely, finally, and perhaps permanently cease to function properly.
I teach history. My graduate training included in-depth study of a country once called the Commonwealth of Poland-Lithuania. I’ll venture few of you knew a country by that name existed, and fewer know much about its history. In fact, it was once the largest country in Europe by territory, and in the 18th century had a voting franchise that was roughly as democratic as Britain—i.e., one of the most democratic in the West at that time. Yet it got literally carved up by its neighbors. Why? Because its government ceased to function.
The government of Poland-Lithuania ceased to function because it had a fundamental flaw in the way its legislature operated. The system could only work if its elected officials operated in good faith. When the Commonwealth’s parliament gathered to debate legislation, any individual deputy could block a proposed law. This right was called the ‘liberum veto’ or free veto. A deputy could simply rise and declare: “I do not allow!” Not only would the individual law under discussion be vetoed, but the entire parliamentary session would immediately end, and all legislation already passed would be declared null and void.
The liberum veto existed to ensure that all voices would be heard and taken seriously, and that no one’s rights would be violated. Since every voice in the Parliament was considered equal, no voice could be ignored. A beautiful idea, in theory. Of course, the theory required that every member of the Parliament act in a principled way, and would not take advantage of the authority that he possessed.
Employed sparingly and in a more limited fashion for decades, the liberum veto’s use—abuse really—grew ever more common until it became almost standard practice, thus paralyzing the government. Foreign powers soon realized that all they needed to do in order to stop the Commonwealth from being able to govern itself was bribe a single legislator to stand up and say: “I do not allow!” Finally, in three separate stages between 1772 and 1795, Poland-Lithuania was partitioned out of existence by Austria, Prussia, and Russia—which got the largest chunk of land.
This is not to suggest that Senators Cruz or McCain are talking this way about the Supreme Court because they are on the take from Vladimir Putin. When it comes to American politicians, let’s just say that Mr. Putin is focused elsewhere. But the parallels to the old Polish-Lithuanian Commonwealth remain clear: A system that only works when all sides operate in good faith is a system that can be abused.
Is there anything in the Constitution that says the Senate cannot simply reject, one at a time, each of a president’s nominees? No. A Republican majority would have the ability to do so, and a President Hillary Clinton would, technically speaking, have no legal redress. Of course, that would mean that a future Democratic Senate would have no choice but to act in a similar fashion toward the nominees of a future Republican president. But that would be well down the road, and apparently Republicans don’t care to think that far ahead.
Beyond the specifics, there is a basic principle that should operate in a constitutional system of government. Namely, all elected officials must put the survival of the country and its institutions above winning a political victory in a given moment. The principle requires that there are certain things you don’t do, even if you, technically, have the ability to do so, because the damage would be corrosive and irreparable.
A former White House counsel to George W. Bush described what Cruz, Burr, and McCain are talking about as: “a clear abdication” by these senators of their “responsibility to carry out in good faith the advice and consent function set forth in the Constitution.”
There are those words again: in good faith. Do you think that a Republican Senate—with Ted Cruz thundering away, gathering followers for a run at the White House that would begin on the day Hillary Clinton is inaugurated—would operate in good faith?
If Clinton does win, and Democrats take the White House for the fifth time in seven elections—thus having doubly earned the endorsement of the American people to shape the Supreme Court—and Republicans stonewall her nominees anyway, there would be no going back from that Rubicon.
We cannot allow Republicans to have the power to act in bad faith, and to grievously injure our Constitution. When you go out and vote for Hillary Clinton, vote for the Democratic candidate for Senate as well. We have some great ones who are in races that remain too close to call, from the aforementioned Deborah Ross in North Carolina, to Maggie Hassan in New Hampshire, to Jason Kander in Missouri, to Evan Bayh in Indiana, to Katie McGinty in Pennsylvania, to Russ Feingold in Wisconsin, to Catherine Cortez Masto in Nevada, and Patrick Murphy in Florida. Of course, we’ve got great Democrats in plenty of other states as well who need your help and your vote.
Please do what you can, make phone calls, help get out the vote, whatever you’re able to do in order to help elect a Democratic president, and Senate, and, yes, House of Representatives. Donald Trump may be the most obvious and direct danger we must defeat on Tuesday. But lurking in the background is another threat, one that we cannot allow to go under the radar. Our democracy depends on defeating them both.