Between Irrelevance and Surrender

Opposing every move by a Trump administration is a quick way to ensure no one will listen. But that does not mean one has to stand by if Trump violates democratic norms.

December 21, 2016

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.

Denial can be simultaneously both tragic and comic.

It took six weeks following the election for Democrats and the remaining never-Trump Republicans to come to grips with the unrelenting finality of the results. And during that period, their desperation became increasingly wrenching and risible.

Did anyone seriously believe that a Jill Stein-sponsored recount would erase a 44,000-vote Donald Trump lead in Pennsylvania? In fact, the recounts, which were only completed in Wisconsin, ended up adding 131 votes to Donald Trump's victory margin in that state.

Even more outlandish were the liberal fantasies of the first elector revolt in history. There was indeed an upsurge in faithless electors -- mostly abandoning Hillary Clinton. Somehow three votes in Washington State for Colin Powell (a weird choice for Bernie Sanders supporters who opposed the Iraq War) and another for Faith Spotted Eagle were not enough to rescind Trump's degree from the Electoral College.

Beyond rightful anger at the Russian hacking and Trump's post-election disdain for divesting his business empire, there is the unavoidable frustration at how the fates aligned to make this former reality-show host the president-elect.

I am not talking about the national popular vote, which will remain mostly a Democratic talking point rather than a persuasive argument. It is worth recalling that had John Kerry received 119,000 more votes in Ohio in 2004, he would have been legitimately elected president even though he trailed George W. Bush by 3 million votes nationally.

What is far more relevant to any discussion of Trump's legitimacy is a point that Nate Cohn recently made in The New York Times. According to Cohn's calculations, Trump prevailed in the Electoral College because he won more swing states by less than 1.5 percent of the vote than any candidate in history. Florida, Pennsylvania, Wisconsin and Michigan all narrowly broke for Trump. I suspect that if you ran 1000 statistical simulations of the 2016 election, Clinton would win in more than 950 of them. The problem is that in the only simulation that counted -- something called reality -- everything came up trumps.

And now a man who may have never read a book that wasn't ghostwritten for him is poised to become the 45th president. With denial gone, those in politics and punditry who militantly opposed Trump's presidential candidacy now face the looming governing question: What do we do now? 

Railing against everything that Trump does or says is both an invitation to apoplexy and a formula for irrelevance. But blessing actions that violate democratic norms is an abject surrender to the semi-accidental president.

The first test will be the Senate confirmation battles over major Trump appointees. It is not accidental that the Trump choices least likely to survive scrutiny have been for White House posts that are beyond Senate purview. Nothing is more troublesome than a conspiracy-minded national security advisor, General Michael Flynn, who was famed around the Pentagon for clinging to dubious "Flynn Facts."

But what standards should be applied to the Trump cabinet?  

Dwight Eisenhower's business-dominated cabinet choices after the 1952 election were ridiculed as "eight millionaires and a plumber." (The plumber, Chicago union official Martin Durkin, was the secretary of labor). Even adjusting for inflation, Trump's barrel of billionaires makes Ike's picks look like refugees from the unemployment office.

Are their prior business dealings disqualifying in themselves? Should Rex Tillerson, widely considered to be competent, be blocked as secretary of state because of his closeness to Vladimir Putin in his prior role as CEO of ExxonMobil? Or is it more concerning that Steven Mnuchin, Trump's little-known pick as Treasury secretary, aggressively foreclosed mortgages in the aftermath of the 2008 financial meltdown? 

In truth, the most definitive study of Article Two, Section Two of the Constitution suggests that anything that the Senate deems relevant in deciding whether to confirm a Cabinet nominee is indeed relevant. My source, by the way, is not The Federalist Papers or a learned volume on the Senate's powers of "advice and consent" by an eminent law professor.

Instead, I have been rereading with pleasure the classic 1959 political novel, Advise and Consent, by Allen Drury. A Capitol Hill reporter for The New York Times, Drury was actually covering the confirmation battle over Eisenhower's choice of Lewis Strauss for Commerce secretary as the first copies of Advise and Consent were being printed. Less than a month before the novel's publication date, Strauss became the first Cabinet nominee to be rejected by the Senate in 34 years.

What gives Advise and Consent contemporary sheen is that the novel revolves around opposition to a mythical secretary of state pick who is viewed as too friendly to the Russians. (I wonder who will play Rex Tillerson in the remake).

Loosely based on the fabled Senate of Lyndon Johnson, Richard Russell, Hubert Humphrey and Jacob Javits, Advise and Consent wastes little time on theoretical disputations over the constitutional meaning of the Senate's confirmation powers. Instead senators feel free to oppose the nominee based on their own political calculations, memories of prior slights, a visceral dislike, or ideological objections to his soft-on-Communism reputation.

None of this suggests that a Republican Senate will muster the gumption to oppose any Cabinet pick by a nominally Republican president. But the Trump cabinet (and we haven't even mentioned such polarizing choices as Jeff Sessions for attorney general) will provide a lasting test of how much latitude a president should be granted in staffing his own administration.

At the height of the Vietnam War, Lyndon Johnson used to remind critics, "I'm the only president you've got." In less than a month, Donald J. Trump will be entitled to say the same thing. And for all the might-have-beens of Campaign 2016, we will all have to learn how to deal with it.

(Photo: Flickr.com)