Sidste ønske (og andet vrøvl)

All is transpiring as I foretold.

Here’s a state-funded DR explainer of sorts, “Vejen er banet for Trumps næste højesteretsdommer: Mitt Romney slukker demokraternes håb.”

It’s everything we’ve come to expect from state-funded journalism: it begins with an actual fact: Senator Mitt Romney has publicly declared he would not block a Trump nomination to the Supreme Court, meaning any such nomination is almost certain to pass.

Then it gets sloppy.

For example: “Det er ellers kommet til stor diskussion i USA, om [Trump] skulle have mulighed for det, efter den liberale højesteretsdommer Ruth Bader Ginsburg døde i fredags.”

It’s true enough (and a bit of an understatement) to say that debate has arisen as to whether Trump ought to nominate a replacement for Ginsburg, before or even after the election. 

As I noted the other day, though, all discussion of “ought” is irrelevant.

The word “ought” appears in the Constitution exactly zero times.

The word “should” appears only once, in Article II, Section 1: “But if there should remain two or more who have equal Votes, the Senate shall chuse [sic] from them by Ballot the Vice President.”  For those of you who are advanced in English usage, you’ll recognize that’s a conditional rather than modal usage of should.  For everyone else, that just means it’s the kind of “should” that means we’re dealing with a hypothetical case (“should he catch on fire, douse him with water”) instead of a should that means “ought” (“he should know better”). In any case, that’s the only time the word appears in the Constitution.

The Constitution isn’t interested in ought and should.  It’s about can and can not.

Any sitting president can, at any time, nominate a justice to the Supreme Court.  The Senate can either approve or reject that nomination. 


Here’s the way DR frames the case:

Dommerne bliver udpeget af den siddende præsident og godkendes af senatet. Men det var alligevel ikke sikkert, at Trump ville få mulighed for at udpege en ny, selvom der blev en plads ledig.

For med kort tid til det amerikanske præsidentvalg – det afholdes 3. november – har Trumps politiske modstandere hos demokraterne argumenteret for, at man skulle vente til efter valget med at pege på en ny højesteretsdommer.

In other words: the Constitution says presidents are appointed by the sitting president and approved by the Senate, but Trump’s opposition would prefer he not do this before the election.

As American Constitutional scholars like to say: well, duh.

Opposition parties are opposition parties.  If they weren’t, they’d be called supporters.

DR then wanders over to their big stable of American experts and draws out Niels Bjerre-Poulsen (“lektor på Center for amerikanske studier på Syddansk Universitet”) who says as much:

Rent forfatningsmæssigt kan de ikke gøre meget for at stoppe det… Men der er en forventning fra demokratiske vælgere om, at de slås for det. De skal ikke bare lægge sig ned og finde sig i det.

That’s just another way of saying: “The president has the law on his side, but Democratic voters want their leaders to fight him on it anyway.”

Which is correct.  They know they can’t stop him, but they figure they’ll raise a little hell in the hopes that it’ll work out well for them politically. First rule of political impotence: the more powerless you are, the louder you scream. (Hold that thought.)

DR could have left it at that, and probably should have, because that’s really all there is to the story: Romney’s statement means the president has the votes he need in the Senate, meaning his nominee will go through.  The Democrats know they can’t stop it, so they’re going to throw another colossal hissy fit and threaten to burn this motherfucker down.  That’s the whole story.  Word it how you want, but that’s the whole who, what, where, when, and why of the story.

But DR’s gotta DR:

Det er ikke kun demokraterne, der har argumenteret for, at det var forkert at lade præsidenten udpege en ny højesteretsdommer så kort tid inden valget.

Det var nemlig også den nu afdøde Ruth Bader Ginsburgs sidste ønske, at det først skulle ske efter valget.

It was her dying wish!

I bet you can guess how many times the phrase “dying wish” appears in the Constitution. (Hint: the phrase “goat cheese” appears just as often.)

If DR were going to engage in actual journalism, then after having mentioned the justice’s dying wish they would have noted her opinion with respect to Obama’s nomination of Merrick Garland in 2016 (following the unexpected death of Justice Antonin Scalia): “The president is elected for four years not three years, so the power he has in year three continues into year four.  Maybe members of the Senate will wake up and appreciate that that’s how it should be.”  She said that almost exactly four years ago, on September 7, 2016, while speaking to law students at Georgetown University. It’s on YouTube. Her “dying wish” is just something her granddaughter says she said. The legal term for that is hearsay. Which means: høresay. Rygter.

Ginsburg was a Supreme Court justice for nearly three decades.  Do you think she knew the difference between a “wish” and black letter law? Do you think she would have grasped the difference between a recorded public statement and hearsay? I do.

But if only for the sake of entertainment, let’s dwell on this dying wish for a moment.  The giddiness of the Hodge Twins is, as usual, infectious:

Getting back to DR: having filled us in on Ginsburg’s dying wish, they then point out that back in 2016 the Senate Republicans refused to approve the Garland nomination on the basis of its being an election year.

Fair enough.  I foretold you there would be accusations of hypocrisy. 

But DR is leaving out first of all the important distinction that the Republicans had the majority in 2016 and would have anyway rejected Garland if they had put his nomination to a vote, and second of all DR somehow forgot to point out the other flavor of hypocrisy currently on display these days.

The retired actor James Woods has been all over it.

He’s been tweeting out actual tweets from 2016, when Democrats were outraged that the Senate majority was blocking Garland’s nomination. (The dates you see are those of Woods’s retweets.)

In choosing to point out Republican “hypocrisy” while turning a blind eye to Democrat “hypocrisy,” and in neglecting to mention that the Republican Senate majority in 2016 meant that rejection was basically inevitable anyway, and in acting as though Ginsburg’s reported “dying wish” has any relevance at all in the mechanics of a Constitutional republic, DR is essentially offering Democrat talking points instead of actual journalism.

Again: none of this matters.  In 2016, the Democrats wanted a win they didn’t have the power to achieve; now in 2020 they want a win they have no power to achieve.  The Constitution isn’t the Make-a-Wish foundation (which anyway only honors the wishes of terminally ill kids who are still alive).  It’s a legal document, a set of rules.

Republicans are going to use the rules to their advantage; Democrats to theirs.

The problem for Democrats in this case is that, as DR acknowledges in the quote from their expert, there are no rules the Democrats can use to their advantage.  They are, as political scientists phrase it, “shit outta luck.”

So they’re only left with one option….

We’ll see how that works out.