Prisoner’s Dilemma, Or Why the President’s Still Got Game

There is nothing between civility and anarchy but the law. And that is at best a mere gossamer of hope.  One can argue that American culture in its most inspirited expression is defined by our willingness to create legal justice.  We have a long way to go, no doubt.  But without the law, what are we?  Whoare we but for the law?  As a “people” Americans are too diverse, too complex socially, religiously, and culturally to be any one people but for the law.   What we share is the political and what we are as Americans depends wholly on the ways we are protected and defended by the law.  Today’s comment on politics and the Supreme Court follows here. 

Yesterday during a 12 hour car ride I heard plenty of progressive radio voices roiling in speculation that the President had cut a deal with Republican Senators to have Chief Judge Garland confirmed to the Supreme Court during the lame duck session.  Today (http://www.politico.com/story/2016/03/mcconnell-no-lame-duck-vote-on-garland-221006) Senator McConnell made clear no such confirmation would happen and so gave the President yet another important political victory.  The President played a brilliant card: Judge Garland is not the choice of most progressives but his chances of even getting a hearing are now zero, as is his confirmation.  It is officially a case of the sacrificial lamb and Judge Garland’s dignity and decency will remain in tact, perhaps even elevated given the way his dismissal reveals further the insipidity of the Republican’s judgment.  Judge Garland is obviously the best any conservative Senator could hope for. And he will not be on the Court. Senator McConnell today said no to any confirmation under this President, furthering only their stated policy that everything President Obama does or says must be rejected outright.  But alas this may yet come home to roost more than a few of their chickens.

The new President-elect will withdraw Judge Garland’s nomination. Bet on that. So why has Senator McConnell taken to this particular hypocrisy?  He has said the people’s voice needs to be heard —has it?— while Republican leadership means to thwart their own people’s voices who have given the majority of delegates to Donald Trump.  The sound of treacle you hear here is more than simple hypocrisy.  It has wrapped itself in an alternative universe governed by casuistry and delusion.  Does Senator McConnell really think that the current debacle of Presidential nominees stands the ghost of a chance come November?  Of course he does.  Living in the phantasmical bubble is the norm.  Do remember Karl Rove’s panicked disbelief on Fox News when it was announced last time that Romney had lost Ohio and the election —and went on to lose the popular vote by 5.5 million.  There is no limit to the way a human narrative of conviction can overwrite reality.  One might say that politics is, like religion, the triumph of ideology over reality.

So of course McConnell is caught in an ideological double bind. Having stoked nothing but Obama illegitimacy for seven years, McConnell must feed the beast that is the Republican base. That same base if voting for Trump and Cruz and, having been feasted on the memes of Limbaugh, Hannity, Beck and Co. for the past twenty years suffers from incurable misapprehension.  Thus the pure politics of not riling the now uncontrollable base makers requires this level of further obduracy. However, such a Republican refusal to act stands to hurt only the Republican Senators seeking re-election in WI/NH/PA/IL, the most purple/blue of States that are up this year. So while McConnell seeks to preserve his power in the Senate by pandering to his base, he puts the most vulnerable Republican Senators in further jeopardy.  McConnell saves himself and his Red State pals but hangs the “liberal” Republican Senators out to dry.  Senator Kirk meet newly elected Senator Tammy Duckworth, ‘cause you are now a Tea Party footnote.  And so on.

Thank goodness the Majority Leader is so easily gamed by the President. By rejecting a lame duck confirmation in advance, McConnell makes another mistake by putting progressive minds at ease.  There is no conspiracy and President Obama gets the self-satisfaction of being the guy who always wants to appear in his own reckoning as the fair one.  So rather than choose a person of greater social diversity and more liberal, Mr. Obama gets to have it both ways.  He can appear ever the conciliator —this is what former community activists and Harvard Law Review President do—and stick it to the Republicans knowing that they will invariably do the imbecilic thing.  The next President, be that Clinton or Sanders (note bene: it will be Clinton), will surely nominate a far more liberal justice(s) when the Republicans couldhave had Garland. They can see this coming but still live in the delusion they might win the Presidency? Only if Democrats don’t vote for their nominee, no matter who it is. All that is left is to get out the vote in these Senate races and demonstrate that Republican claims to being “Constitutionalists” is only more legerdemain. The Supreme Court is the single most important issue for the next 25 years —and we could have a liberal majority if the people simply vote.  Well done, Mr. Obama.

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