Is this idea an infeasible fever dream -- borne out of pure desperation and blind fury -- or an actual viable option against which Senate Republicans must vigilantly guard? I've seen lefties on social media kicking around this plot to effectively hijack the Senate as soon as it gavels back into session next year in order to exploit what they believe to be a loophole that would allow Senate Democrats to confirm Merrick Garland before the chamber's agenda is technically controlled by Mitch McConnell's Republicans. Via IJR's Andrew Clark and various liberals who until very recently were wringing their hands about the prospect of a Trump-precipitated constitutional crisis:
Been reading up on this procedural opening for a few hours, it's actually a reasonable interpretation.— Matt McDermott (@mattmfm) December 6, 2016
Biggest obstacle: Democrats' spine. https://t.co/1uPH1PVrv8
It turns out that sometimes openly advocating a constitutional crisis through the breathtaking and illegitimate arrogation of power is just peachy, so long as it's intended to "save the country from fascists," as this post from a left-wing fringe site puts it:
On January 3, 2017, Democrats will hold the majority in the Senate for a few minutes, until the newly-elected Senators are sworn in. Biden could convene the Senate in those few minutes and call for a vote. The majority could then suspend the rules and vote in Merrick Garland. The key here is that VP Biden would have to be willing to convene the Senate and recognize Senator Dick Durbin instead of Mitch McConnell. Durbin moves to re-nominate Garland, and Senate Democrats then vote to confirm him. They will have a quorum for those few minutes. It's bold. Garland would be confirmed by 34 Democrats and no Republicans. It will certainly enrage Republicans, but they're already enraged and full of hubris about how they're going to screw Democrats anyway, so what do they really have to lose? Not much. It takes courage. It takes a resolve to do what's right for this country, to reclaim the Supreme Court nomination Republicans think they stole from us. It takes backbone.
First of all, nothing was "stolen," as this writer so melodramatically frames things, for reasons we've explained several times. Republicans merely followed the Biden Rule, preventing a lame duck president from tipping the Court's balance when an election-year opening arose. They insisted that the people have their say, and the people picked a Republican president who has vowed to replace the late Justice Scalia with a similarly-minded nominee. But as the above post points out, the originator of this idea is a lefty radio host who was also a chief proponent of Senate Democrats using reconciliation to force through Obamacare after Scott Brown was elected by the people of Massachusetts to stop the law in its tracks. Some elements of the Left never tires in its scheming to thwart the will of voters, it seems. Conservatives reacted to the proposed unprecedented power grab with a heavy dose of scornful reality-checking:
@gabrielmalor This silly idea has absolutely no basis in reality. None. You must be entirely ignorant of Senate rules to buy into it.— Sean Davis (@seanmdav) December 6, 2016
There appears to be some dispute as to whether Senate Democrats would even hold an extremely fleeting, phony "majority" under this scenario, and whether they could actually manage to suspend the rules within the rules to pull off this brazen stunt. Either way, I'd imagine that cooler heads would prevail, especially in light of several Democrats' fresh and public professions of regret over their last raw, costly power play:
But there is little they can do about it -- and some top Democrats are now coming to regret it. That's because Senate Democrats muscled through an unprecedented rules change in 2013 to weaken the power of the minority party to filibuster Cabinet-level appointees and most judicial nominees, now setting the threshold at 51 votes -- rather than 60 -- to overcome tactics aimed at derailing nominations. With the Senate GOP poised to hold 52 seats next Congress, some Democrats now say they should have thought twice before making the rules change -- known on Capitol Hill as the "nuclear option." ... Some Democrats realize they've made life harder for themselves. "In specific circumstances, we may regret that we can't block a nomination," said Sen. Richard Blumenthal, D-Connecticut. "But I think that the American people want action, and they want the process to work. And they want the folks whom they have elected to actually do the job and get stuff done." One person who seems to be having buyer's remorse over the change in filibuster rules: Sen. Chuck Schumer, the incoming Democratic leader. Schumer told The Washington Post last month that he privately lobbied Senate Democrats in 2013 to maintain the 60-vote threshold for Cabinet-level nominees, but: "I didn't prevail." Asked twice at a news conference last week, Schumer declined to say if he thought invoking the nuclear option was a mistake.
Given that last bolded quote, what are the chances Schumer would be willing to go thermonuclear? Regardless, Senate GOP leadership should have contingencies in place to head things off just in case Democrats are foolish and arrogant enough to attempt this coup.
UPDATE - Must read by Sean Davis. This hair-brained scheme is going exactly nowhere.