Saturday, February 20, 2016

Response to Replacement Theory

(See: Just Above Sunset: Replacement Theory)

One thing I haven't heard discussed anywhere in the recent shitstorm concerning the proposition that a "lame duck" president -- allegedly, one who comes within a year of leaving office -- should stop being president, is the evolving meaning of the term "lame duck". Here's how my computer's onboard dictionary defines it:
lame duck |ˈˌleɪm ˈdək|
an official (esp. the president), in the final period of office, after the election of a successor
That, at least, is what it used to mean back when Marco Rubio was in elementary school.

In fact, I myself am old enough to remember when pundits, back when they were called "commentators", started commenting ironically on the fact that, although the election was months and even years away, some president started acting as if he were a lame-duck earlier and earlier, partly because a lot of people stopped listening to him. And the next thing I knew, they were doing away with the "as-if".

But here's Wikipedia on the concept of lame-duckism in American politics:
In U.S. politics, the period between (presidential and congressional) elections in November and the inauguration of officials early in the following year is commonly called the lame duck period. In regard to the presidency, a president is a lame-duck after a successor has been elected, and during this time the outgoing president and president-elect usually embark on a transition of power. ... 
A president elected to a second term is sometimes seen as being a lame duck from early in the second term, because presidents are barred from contesting a term four years later, and is thus freer to take politically unpopular action. Nonetheless, as the de facto leader of his or her political party, the president's actions affect how the party performs in the midterm elections two years into the second term, and, to some extent, the success of that party's nominee in the next presidential election four years in the future. 
For this reason, it can be argued that a president in his second term is not a lame duck at all, because this increased freedom makes him more powerful than he was in his first term. 
The term "lame duck President" traditionally is reserved for a President who is serving out the remainder of his term after having been defeated for re-election. In this sense, the following Presidents in the twentieth century were lame ducks: William Howard Taft, who was defeated for re-election in 1912; Herbert Hoover, who was defeated for re-election in 1932; Gerald R. Ford, who was defeated in 1976; Jimmy Carter, who was defeated for re-election in 1980; and George H. W. Bush, who was defeated for re-election in 1992.
So technically speaking, since Obama won't be defeated, given that he's not even running, not only is he not really a lame duck right now, he won't really even become a lame duck president on the day after election day, about nine months from now.

And while I'm here, I should say something about the contributions of Miguel Estrada and Benjamin Wittes to the discussion:
Here’s a simple piece of advice for anyone confused by the partisan politics of replacing Justice Antonin Scalia: Assume that anyone who claims to be acting out of a pristine sense of civic principle is being dishonest. 
We have both argued for a world in which judicial nominees receive prompt hearings and up-and-down votes based solely on their objective qualifications — education, experience and temperament. But that has not been our world for at least two decades. The savvy citizen should recognize as much and heavily discount anyone who speaks in the language of principle about the rules or norms that do or should govern the treatment of either a judicial nominee or the president who sends that nominee to the Senate. 
As recent history demonstrates, the only rule that governs the confirmation process is the law of the jungle: There are no rules. There is no point in pretending otherwise, as much as many of us wish it were not so. ... 
Republicans and Democrats put the blame on the other for the complete abandonment of rules and norms in the judicial confirmation process. Both are being insincere — whitewashing their conduct over a long period of time while complaining bitterly about the very same conduct on the part of the other side. Both have chosen, in increments of one-upmanship, to replace a common law of judicial nominations that was based on certain norms with one based on power politics alone. 
Today, there is no principle and no norm in the judicial nominations process that either side would not violate itself and simultaneously demand the other side observe as a matter of decency and inter-branch comity.
Yeah. But also, no.

The "yeah" part is that, yes, shit does happen. Senator Obama once backed a filibuster, although he later said he regretted doing so. Even I have found myself arguing that, if Republicans pull this stuff on us, we should threaten to later do the same to them -- that is, vow to filibuster every nomination of a Republican president until a Democratic one comes along. After all, where in the Constitution does it say we can't create chaos?

But the "no" part is that the founders couldn't write such a comprehensive document that covered every single detail, from how long a senate dominated by one party can stall confirming a nominee of the other, to exactly how many times a day the senators should take bathroom breaks. In truth, the founders didn't even anticipate there being any political parties in America, much less two of them constantly co-conspiring on ways to torpedo getting anything done.

The founders left it up to us to work out the details on how to make happen the things that need to happen. Yes, there's nothing in our Constitution that dictates that certain procedures happen a certain way, or even that they happen at all, but throughout our history, when we, the people, noticed a flaw in the Constitution, we sent out a patch. When the presidential election of 1800 demonstrated that future elections could all too easily end up in unresolvable ties, we immediately fixed it by amending the constitution. When we finally realized that our definition of "people" shouldn't exclude non-whites and non-males, we fixed it.

And so, yes, both sides get away with using power politics when they can, but there's a difference between the way things do work and the way they should work; otherwise, we'd never even know that we need to fix the system when it's broke.

But whenever we find ourselves falling into the trap of claiming that, if one party does something wrong, the other side obviously must do it, too, we need to stop ourselves. After all, as has recently been pointed out, while most Republicans seemed to get on Chief Justice Roberts' case for twice refusing to kill Obamacare, you didn't see Democrats likewise go nuts and blame Justices Brewer and Ginsburg for voting with the majority on not forcing the states to expand Medicaid.

My point is, when someone argues on principle, you shouldn't jump to the conclusion that they are "being dishonest"; otherwise, you would not see the occasional conservative (such as David Brooks, on NPR on Friday) agreeing with the rest of us who believe that when a vacancy comes up on the Supreme Court, the president -- no matter how far we are away from his being out of office -- should nominate a replacement, and the senate should advise and consent.

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