The answer seems to be “not no, but f*** no!”
To say that the left is still suffering from sandy vajayjay syndrome — word is that the AMA will recognize this as an official medical condition and it will be covered by the Americans with Disabilities Act — over the failure of the very lame duck Barack Obama to be able to railroad a stone cold progressive through the US Senate to a life time sinecure on the Supreme Court is an understatement. Scarcely a day goes by without some major progressive figure or one of the legion of progressive media outlets bitching about Obama’s supposed “right” to have the Supreme Court nominee of his choice. This, of course, has been exacerbated by Donald Trump winning the election on November 8.
If you read the Democrat threats to stymie Trump’s efforts to fill cabinet posts, you find them whinging about Garland as a reason — never mind that cabinet officers are actually and Constitutionally different from Supreme Court justices.
One of the most bizarre additions to the conversation comes from Daily Kos. We haven’t heard much from them in the past decade for good reason. Their sole line of business was opposing George Bush and reliving the Flordia Recount. But Daily Kos has never been renowned as a home for people who can think. Back in December 2004 one of their leading lights predicted that the casualty rate in Iraq would cause the US Army to run out of troops in the next year. The same brain trust that brought you that and other zaniness during the Bush years is now flogging an idea of how the Democrats can gain control of the US Senate and confirm Merrick Garland.
Wait, wait, you say. Isn’t there a GOP majority in this and in the next Congress. Well, if you have a rich fantasy life, anything is possible. Enter Daily Kos “editor” David Waldman who, when he’s not engaging in anti-Catholic rants, fools his readers for clicks. (Sorry, I don’t provide links to hate sites or sites that allow bigots to have a voice.)
At noon on January 3, 2017, the terms of the current members of the Senate’s Class III will come to an end. At that point, the Senate consists of 66 sitting senators, and we would ordinarily expect Vice President Joe Biden, in his capacity as Senate president (in which role he continues to serve until noon on January 20th), to begin swearing in the senators-elect of the new Class III.
Typically, the swearing-in would be the first order of business, although occasionally there are brief welcoming remarks from the Majority and Minority Leaders, the Majority Leader traditionally being afforded preferential recognition by the presiding officer. That is, he gets to speak first, if anyone has anything to say before things get started.
But when Biden looks out over the Senate floor—in what will likely be one of his last official acts—he’ll see 66 currently sworn and serving senators, 34 of whom will be Democrats, two who are independents, and 30 who are Republicans. At that moment you might wonder, then, just who constitutes the “majority,” and therefore who the Majority Leader actually is. In fact, as the numbers tell us, Democrats will make up the majority of the Senate, and their leader might arguably be entitled to preferential recognition. This situation has surely occurred before. It’s just never mattered. And so in all likelihood, absent some other plan, we would expect Biden to afford that privilege to Mitch McConnell of Kentucky, the current Majority Leader, who’s expected to continue in that role in the new Congress.
Suppose, though, that there is another plan. Suppose Biden instead chooses to recognize the sitting Democrats as the majority, that being the then-current truth of the matter? And suppose, therefore, he chose to recognize the Democratic floor leader first? Now, we all understand that Chuck Schumer of New York is slated to become the Minority Leader in 2017. But at that point, he’s merely one of the 34 senators-elect waiting to take the oath and begin his term. Dick Durbin of Illinois is, at that moment, the highest ranking Democratic floor leader. So suppose Biden were to recognize Durbin first, and grant him the floor for opening remarks?
The idea is that sometime in that gap between when the current Congress expires and the new Congress is sworn in, there is a fleeting moment where Dick
Turban Durbin is actually in charge of a Senate composed of 66 incumbent senators who were not up for election in 2016. The Democrats are a majority in that rump Senate and then Biden can delay swearing in a new Senate until Garland is confirmed. Or this:
That, my friends is not how any of this works.
For beginners, the term of the incoming Congress is not dependent upon when Joe Biden gets around to swearing them in. Do this thought experiment. Suppose Biden decided he like a Senate of 66 members which he controlled. Why swear them in at all? In fact, under this logic Biden could refuse to swear in the new House and Obama could continue to govern by fiat. What if Obama prevailed on John Roberts to just not show up on January 20? Wouldn’t Obama stay president?
The Senate, unlike what Waldman wants his rather goofy admirers to believe is a continuous body. Were that not the case, Waldman’s strategy would not work at all because his 66 person Senate wouldn’t exist. In order for this new Senate to do what Waldman suggests, they would have to change a slew of rules on how votes are scheduled. Then, of course, they would have to deal with the ramifications of a patently illegal act which surely would not stand — summary execution by a mob would not be out of the question. Plus, all of this assumes that Biden, Obama, Durbin and Garland would go along with it or that the other justices on the Supreme Court would allow this to take place.
THE definitive takedown of this (because I’m sure your ill-mannered progressive family members will discuss this over your “Holiday” dinner) can be found in Sean Davis’s post at The Federalist.
For all of the left’s woofing about being “the reality based community,” in reality they are a bunch of rubes who will unquestioningly applaud and believe any nonsense so long as the right guy is telling it to them. In fact, they are very much like Trump’s most loyal fans.