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Why Do Democrats Whine About Neil Gorsuch and Bemoan the Loss of Merrick Garland?

First of all, Merrick Garland wasn’t “lost.” He was thrown away, deliberately and deceitfully, by the same man who nominated him for the Supreme Court — Barack Obama.

The sad fact is, if Obama really wanted Garland on the Supreme Court, he could have put him there with a simple recess appointment. The Republicans could not have stopped him. So why didn’t Obama do it?

The answer is in the oft-repeated bromide that there is no significant difference between the Democrats and Republicans when it comes to challenging the real power structure — by which I mean the tiny handful of men (and they are all men) who sit at the top of the financial and corporate class that controls our society and commandeers such a disproportionate share of its benefits.

This tiny elite pulls the strings of both parties, who will consequently never threaten their interests. All those noisy public fights (or, more accurately, “fights”) between Republicans and Democrats are only for show. They are never about down-to-earth issues, like money and power, but only about emotional issues like gay marriage, flag burning, and immigrants raping our daughters. Those issues may indeed be important to voters, but they don’t matter to the 1%, who chose those issues to inflame voters and distract them from thinking about the real problems of society.

That strategy has worked like a charm for the past 50 years. It certainly worked to distract voters 2-1/2 years ago, by focusing their attention on the carefully staged melodrama between our saintly matinee idol President and that nasty chinless Mitch McConnell, who was wickedly refusing to let Obama choose a Supreme Court justice. But it was all show biz. McConnell didn’t block Obama from appointing Garland – Obama blocked himself – intentionally — since he could have easily recess-appointed Garland (or ideally someone even more progressive than Garland, who, as a center-right conservative, would probably have voted more often with John Roberts than with Ruth Bader Ginsberg).

I wrote the above a few days ago to a list of Pacifica Radio activists, whose moaning and groaning about the right wing’s grip on the Supreme Court was driving me batty. I asked them to wise up – to ignore the magician’s hand being waved in their faces to hold their attention, and instead keep their eyes on the hidden hand beneath the table, where the real action was taking place.

I thought that was the end of it. But I got a reply informing me that I was all wrong. Obama, the writer said, could not have made a recess appointment of Garland because – well, because Congress was never officially in recess during that time. The Republicans, he said, had deliberately prevented Congress from recessing precisely to stop Obama from making any recess appointments. To this end, they always left a couple of Senators in the chamber to cover their asses, holding pro-forma sessions of a minute or less, every three days. (Three days were needed because recess appointments can only be made after Congress has been recessed for at least 3 days.) Interestingly, the Republicans pulled the same trick on Trump, to prevent him from making any recess appointments last year. They didn’t trust him.

So was I wrong about Obama? Was he really the cheated and mistreated President he made himself out to be – unfairly robbed of his Constitutional right to appoint a Supreme Court Justice by perfidious Republicans?

Not a chance. Which makes the following a double indictment of Obama. Either he was (1) a wimp who didn’t have the guts for a toe-to-toe public brawl with McConnell, or (2) he was secretly collaborating with McConnell to construct an alibi for abandoning his publicly announced goals by claiming that the Republicans allegedly “prevented” him from making a recess appointment. But in fact, the Republicans didn’t prevent Obama at all. Their tactic of keeping the Senate in perpetual session need not have stopped Obama from appointing Garland – if he chose to do so.  That is because (pay attention) the President of the United States has the Constitutional power to FORCE Congress into recess. He can, in effect, dismiss Congress under Article II section 3 of the U.S. Constitution. That section states:

“He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.”

Now I ask you — can Obama, a professor of Constitutional law, claim he didn’t know that?  The simple truth is that Obama could have recessed Congress for the 3 days necessary to appoint Garland to the Supreme Court, where he would have remained until at least the next Senate session – which, if it reconvened with a Democratic majority after the election, could have made Garland ’s recess appointment permanent. But even if the Democrats did not win a majority, and the appointment of Garland lapsed at the next session of Congress, his recess appointment would have been a painful poke in the eye to McConnell. It might even have produced some worthwhile judicial decisions before Garland had to leave.

Certainly, it would have cheered Obama’s loyal but gullible groupies, who still insist that, “Aw, Gee. Obama really tried, but his hands were tied by the Republicans.” Yeah, sure.

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