The spectre of President Biden being hamstrung by a vindictive Senate Majority Leader, Mitch McConnell, has a number of people worried, including me until I watched a recent episode of Glenn Kirschner’s Justice Matters on YouTube.
A little background for anyone unfamiliar with the name: Glenn Kirschner is a former Assistant US Attorney at the DC US Attorney's Office with extensive experience as a federal prosecutor, homicide prosecutor and Army JAG. For 30 years, he argued to juries, breaking down complex legal issues in ways that were easily understandable and relatable. It is this talent that makes his legal analysis so accessible to his audiences on NBC News, MSNBC and his YouTube channel.
His legal insights are are not only comprehensible to this layperson, they are also very illuminating.
I particularly want to share his insights into how to deal with a McConnell campaign to cripple Biden’s presidency. Kirschner first of all points out the efficacy of Executive Orders in this instance, especially as a means to undo the damage Trump perpetrated on the nation via the same means. I’m sure we’re all aware of this Executive tool and that we also recognise its limitations. Biden is going to need something much more forceful than EOs to break the blockade between the US House and the Executive.
Glenn Kirschner notes, “You know, it might actually present some interesting opportunities.” He goes onto consider what Biden could do in an instance where a vacancy falls open on the Supreme Court and McConnell once again prevents a Democratic President’s nominee getting a hearing. It’s a clever solution too — but, more importantly, it is something that will work for Biden from day one.
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A great many of us expect McConnell to use his disingenuous Garland tactic to prevent any Biden nominees being confirmed for Cabinet positions. So let’s see what happens in this case if we apply the Kirschner stratagem.
Step 1
The day after Inauguration, President Joe Biden presents McConnell with a slate of, say, 20 nominees for key Cabinet positions including Secretary of State and US Attorney General. McConnell announces that he will not be giving any of them a hearing and sets the slate aside. Minority Leader Schumer and other prominent Democratic Senators object, rightly calling McConnell’s intransigence unconstitutional but McConnell is unmoved.
The US Constitution
Article 2, Section 2, Clause 2:
…by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law
Step 2
President Biden interprets this inaction from McConnell as waiving the opportunity to provide the Advice and Consent of the Senate. He therefore goes ahead with a ceremony to congratulate the nominees on their Presidential appointments and invites them to take up their positions.
Step 3
So what’s McConnell’s response likely to be? Glenn Kirschner says,
Let Mitch McConnell run into court, Federal District Court in Washington DC, and try to convince a judge, and then try to convince an Appellate Court that he, as one man, gets to rewrite the Constitution; he gets to say there will be no consent and advice hearing [on any Presidential nominees] “because I, Mitch McConnell, say so. I don’t care what The Constitution requires.”
A wheedling McConnell whining to a judge because he’s not getting his way? It’s not going to go well and Kirschner agrees. Mitch McConnell would lose that fight and I can see why. It is a foolish position to take and McConnell does need to be called on it. So let him make a fool of himself in the courts. The judges will call him to account because he doesn’t have a legal leg to stand on. Besides, most judges have little patience for frivolous partisan lawsuits like this.
Oh and while McConnell is busy preparing for and dealing with his day in court — make that several days as he goes from one court to another with long waits in between — President Biden will be appointing more Ambassadors and Officers of the United States so they can get on with the job of mending and healing America and her relationships with her allies.
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You can be sure too that like the previous two years, McConnell won’t be doing any legislating either so there’s no point the Executive wasting time meeting with Congress to try to find ways to move them forward. That, says Kirschner will free up the Executive even more so they can “spend a whole lot of time and energy and resources investigating, indicting, and prosecuting crime, particularly political criminals.”
That will give McConnell something else to worry about since many of the GOP politicians in his caucus are likely to attract the attention of investigators. Mitch will be operating on a very slim majority so if he loses just one of them, it will seriously threaten his ability to hang onto his position.
“Maybe it’s a win-win,” says Glenn Kirschner.
Sure sounds like a win-win to me.
Glenn Kirschner’s Justice Matters episode “Let's Talk Criminal Accountability for the Trump Years Under the Likely Biden/McConnell Power Split”
Sunday, Nov 8, 2020 · 10:27:51 PM +00:00
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Mopshell
I’ve seen this suggestion at least twice in the comments now and I think it’s nothing short of brilliant.
Biden can relegate McConnell to minority leader status by promoting two republican senators to cabinet positions. I’m sure Mainers would love to see Susan Collins offered the position of Deputy Chief in charge of Fish in the US Fish and Wildlife Service, and Jerry Moran would surely jump at the opportunity of an ambassadorship (put him in Eastern Europe somewhere).
The beauty of these two appointments is that these republican senators would be replaced for the duration of the 117th Senate session by choices made by their Democratic governors in states with no strictures regarding which party Senate replacements represent.
McConnell would be apoplectic over two of his senators deserting him but that would be his problem. We’d be far too busy celebrating!