Editor’s note: The author of this guest post, Lawrence Weschler, is a former staff writer for The New Yorker.
Some of you already know the story:
A fresh season of pogroms has descended across the Pale of Settlement, and the Cossacks are on the rampage, rape and pillage and burnt synagogues engulfing one village after the next until their forces arrive at this particular little shtetl whose Rebbe now comes out to confront the horde, demanding to speak with its leader Prince Igor.
Dubious, Prince Igor gallops over, calls a momentary halt to the carnage, glares down on the puny cleric and demands to know, “And what do you want, Semite?” At which point the Rebbe makes an offer: “Prince Igor,” he suggests, “I bet you that if you leave your horse here with me for one year, I can teach it to speak.”
The Prince is incredulous, insulted, intrigued: “To speak,” he sputters, “you mean, words, actual words?” Yes, confirms the Rebbe. “And if I were to agree,” the Prince snarls at length, “what is the bet?”
“Well,” the Rebbe proposes, “you leave the horse with me and you depart, taking all your men with you, and when you come back in a year, if I have indeed taught your horse to speak, you agree that you will then take the horse back but leave the rest of us here in peace.”
“And if not,” demands the Prince, “if you fail to teach him to speak?”
“Well then, you can slaughter us all and lay waste to everything you see.”
The Prince ponders the offer, harrumphs, dismounts, hands the reins of his horse to the Rebbe, casually tosses one of his own men off his mount (claiming it as his own), and leads the rest of his forces away.
The villagers now surround the Rebbe. “Are you crazy?” they demand to know. “What kind of bet is that? There’s no way you’re going to be able to teach the horse to speak! What on earth have you done!?”
At which point the Rebbe responds, mildly: “A year’s a long time: the Prince could die, the horse could die ….”
Let us review the bidding up to this point.
A bit over a year ago, the arch-conservative Supreme Court Justice Antonin Scalia died in his sleep during the night of February 12–13, 2016. Almost exactly a year ago, on March 16, President Obama nominated Judge Merrick Garland, a moderate’s moderate, to replace him. At which point, in a move unprecedented in American history, with almost a full year yet remaining in Obama’s second four-year term, Senate Majority Leader Mitch McConnell announced that he would simply prevent the Senate from exercising its constitutionally imposed role of advising and consenting on the nomination, thereby killing it. “Our view,” he explained, “is that we should give The People a voice in filling this vacancy.” (Notwithstanding the fact that three years earlier The People had in fact made their intentions perfectly clear by electing President Obama to that second four-year term, by a 51–47 percent margin in the popular vote, 332–206 in the electoral college). “We should let the American People decide the direction of the court,” concurred House Speaker Paul Ryan.
The Republican veto held firm for the rest of the year, right through the November election, when the American people indeed registered their decision, bestowing the the Democratic presidential candidate with almost three million more votes than they did the Republican, which is to say more than two percent of the total votes cast (more of a percentage difference in the popular vote, that is, than eleven of the forty-five prior candidates who in fact did go on to serve as president); and the only reason she is not thus serving today is because of a profoundly nondemocratic and retrograde Electoral College system, whose main reason for existence, let’s be honest, was to assuage the slave states at the time of the Founders’ original constitutional convention.
Even more impressively (and perhaps less well appreciated), in that same election, the Democratic Senate candidates got a cumulative eight million more popular votes than did the Republican party’s. Furthermore, if one looks at the cumulative votes for all 100 of the currently serving Senators (that is to say the votes in all of the elections for Senate over the past three cycles), the Democratic advantage swells to fifteen million votes! But once again, owing to the slave-era rules (requiring that each state, no matter how small its population, be afforded two senators), the Republicans have ended up with an otherwise unjustifiable 53–47 advantage in the Senate.
But okay, notwithstanding those popular vote totals, the Republican’s presidential candidate Donald Trump did win by the rules in place (302 electoral votes to 236), whereupon, soon after his January inauguration, he announced his nomination of Judge Neil Gorsuch, a conservative’s conservative (on many issues even more conservative than Scalia) to fill the Garland seat.
Meanwhile, in the very midst of Gorsuch’s confirmation hearings,* it came to light that blatant irregularities in President Trump’s campaign, specifically regarding its contacts with Russian agents and possible collusion in the by-now well-documented Russian disruptions of the campaign as a whole, were under active ongoing investigation by the FBI.
All of which presents Senate Democrats with a dilemma. How should they respond to the Gorsuch nomination?
They could launch a filibuster that would force the Republicans to garner sixty votes in order to proceed to a vote (an unlikely prospect). The Republicans, however, have threatened to respond to that gambit by launching their so-called “nuclear option,” removing the possibility of such a filibuster by a simple majority vote of their own (even though they are loath to do so, since they might want to retain the option in case the tables are one day turned).
But, citing the double irregularity of the “stolen seat” and the possibly stolen election (along with the fact that the people, having been polled, did indeed register a leaning quite opposite to the one now being made manifest), the Democrats could instead launch a filibuster on the following grounds: insisting that while they were not necessarily saying no on Gorsuch, they were demanding a year’s hiatus, out of sheer fairness. They were forced to wait a year, now the Republicans should have to do so as well, after which, the scales having been judiciously rebalanced, the Democrats would promise to give this particular nominee due consideration, without recourse to any filibuster at that time.
The offer might well seem more than fair to the public at large (who in any case hold the president in something less than awe, according to recent record-low polling numbers), and the Republicans, for their own part, might be willing under those circumstances to hold off pulling their nuclear trigger.
For at least one more year, the Supreme Court would remain locked in its 4–4 tie, alone among the federal branches of government not entirely given over to dubiously attained absolute Republican control, this during the particularly treacherous first year of the Trump administration with all its radical and Constitutionally dubious initiatives.
Such a course of action would furthermore allow the FBI’s investigation to play out, while other Trumpian intentions would have more time to become evident, potentially seeding the way for a better over-all environment in which to wage this particular battle, a year from now.
And, as the Rebbe well knew, a year can be a very long time.
*Speaking of the hearings and the Senate’s constitutionally imposed duty to advise and consent on Supreme Court nominations, I might note here that the idea for this piece first occurred to me while watching a couple weeks back as one Republican member of the Senate Justice Committee, at last given the chance to exercise that august responsibility, subjected nominee Gorsuch to a particularly rigorous piece of equine grilling.