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Our democracy is in peril. Increasingly it has become clear that democratic principles and the concept of a constitutional republic are in fast retreat under Trumpian diktat. We are often treated to academic discussions about the prominence of the rule of law in a free society, however, it is becoming just that, an academic discussion with increasingly little practical application. That could change dramatically should Trump prevail in appointing the next Supreme Court justice.

Democracy in the Balance

Democracies are in trouble, not only in the United States but around the globe. Just as our nation continues to squander its moral authority on basic human rights not only here at home on our southern border but also through our international courtship of dictatorial suitors from Turkey to the Philippines to Russia to North Korea, an assault on civil liberties may also be underway. And as the checks and balances built into our representative system are eroded by one-party rule, the recent announcement by Justice Kennedy now virtually guarantees a semi-permanent majority of reactionary judicial ideology on the Supreme Court for decades to come.

Rampant politicization of the three branches of government fueled by a charismatic leader more likely to be compared to Hitler or Mussolini than Lincoln or Roosevelt is threatening to irreparably split the nation in two.

Rampant politicization of the three branches of government fueled by a charismatic leader more likely to be compared to Hitler or Mussolini than Lincoln or Roosevelt is threatening to irreparably split the nation in two and give Vladimir Putin the wedge to split the Western alliance that has bedeviled the former KGB agent since before the Soviet Union disbanded.

So in the midst of this calamitous development we are now faced with the prospect of not only how to mitigate the worst tendencies of a populist demagogue who has securely leveraged control of the levers of governmental power but probably more importantly how to salvage notions of government of, by, and for the people: namely, how do we save our democracy?

The Democratic Party seems cock-sure that the appropriate strategy is to adhere to the strictures of an abominable maneuver engineered by Senate Leader McConnell to deny President Obama of his constitutional right to nominate the Supreme Court vacancy left with the demise of Antonin Scalia in 2016.

The thinking goes that somehow we can attract at least some support by shaming Mitch into swallowing his own words about how you should wait until after an election year to fill the current vacancy. This would assume that the man has a shred of decency, integrity, and at the very least consistency. As a former politician once told me, channelling H. L. Mencken, “Consistency is the hobgoblin of small minds.” McConnell is devoutly and laser-focused on power and control of the levers that generate such power. He is a whore to a system that worships it and will sacrifice anything or anyone except himself to maintain it, so appealing to a sense of rectitude simply will not work. The Democratic strategy, at best, is a gamble.

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Not only will this in all likelihood not succeed on the one hand, but on the other it might only succeed in delaying the inevitable, unless of course Democrats manage to retake control of the US Senate, a certain long shot. The “McConnell rule” was terrible public policy and under no circumstance should we reduce ourselves to relying upon it as anything other than the despicable abomination of perverse corruption that it was and is.

A far better suggestion is currently making the rounds in some progressive circles that I believe is both justifiable, fair, and stands at least a chance of salvaging the larger issue of preserving our democracy: namely, hold off a vote until the Special Counsel has submitted a report to Congress, or closed the investigation of the President. On its very face it is fair and we should never underestimate the importance and appeal to the American people of the concept of fairness. It is viable and understandable and those who threaten to rush through a patently unfair adjudication of any issue run the risk of being accused of hiding something.

Think of the issue in terms of conflict of interest in extremis. By allowing the President to select what in effect will be the deciding vote on an otherwise evenly divided court he will be selecting the individual who may be called upon to do the following: decide whether he can pardon himself, be indicted, or be compelled to testify before a grand jury; decide whether the Special Counsel violates the Appointments Clause; and/or potentially decide on whether acceptance of funds from foreign entities violates the Emoluments Clause. In effect, the rule of law may very well depend upon a Supreme Court in a 5-4 decision with the deciding vote cast by the President’s own appointment. This is a classic textbook definition of conflict of interest writ large.

The potential stakes could not be higher for the nation, or for that matter, most likely for democracies throughout the world. It is vitally important that Democrats craft a strategy that lays out the merits of an argument that at its very core stipulates that no person is above the law and no person has the right to select special circumstances under which they are judged and sentenced.

Democrats should not be considering tit for tat with respect to legislative indignities such as those unfurled under the leadership of Mitch McConnell. These are perilous times for our nation, our values and principles are under assault by a corrupted electoral system and all of this is occurring in the shadow of a compromised and questionable set of circumstances that question the very legitimacy of the 2016 election itself.

As the Mueller investigation advances in a deliberate and professional manner, respectful of the potential consequences and stakes involved, the nation and its citizens are owed a full and complete rendering of facts and conclusions. To short circuit the importance of a full and fair adjudication of the facts is to render our representative democratic experiment not only dysfunctional but depleted. If that happens we run the risk of a substitute that in the long run destroys the nation as we know it, or at least the one we thought we knew.

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Lance Simmens