A new nullification crisis?

Any constitutional crisis will be of their own making.

The Trump Apocalypse Might Not Come, But the Republican One Will

This year’s presidential election has been marked less by a continued erosion of political norms than by a desperate and fatalist Republican Party abruptly jettisoning them.

GOP nominee Donald Trump has promised to jail his opponent Hillary Clinton if he becomes president. 

With macabre consistency, he and his allies let slip fantasies in which she is murdered or executed. 

They have recruited the FBI to influence the election, and the FBI has accepted the invitation. 

Trump has asked mobs of his supporters, many of them white nationalists and armed reactionaries, to flood urban precincts and intimidate minority voters, whom he’s accused of participating in a global scheme to steal the election.

. . . .

If Democrats reclaim the Senate, but can only confirm Clinton’s nominees by further eroding the filibuster, Republican voters will extend the presumption of illegitimacy from Clinton to her nominees and then to their legally binding decisions. 

Filling the existing vacancy with a liberal justice would effectively turn the Roberts Court into the Kagan Court, which would begin issuing decisions that conservatives abhor almost immediately. 

But if conservatives perceive the president who appointed the decisive justice as illegitimate, they will reject the new Court’s rulings and pressure their state governments to annul them. 

(If you think Republican states wouldn’t ignore court orders out of sheer determination or panic, you haven’t been paying attention this election cycle.)

Update, 1255 hrs EDT, 11/5/2016.

But David Brooks, Republican columnist for the NYT, is OK with it.

JUDY WOODRUFF: Well, it means there is a lot of sorting out to do after this election.

I want to ask you both about the Supreme Court.

Mark, we have heard from Republican senators in the last few weeks that they’re, no matter — if Hillary Clinton is elected — this is an if — no matter who she puts forward, they’re going to make sure that she doesn’t get to fill that last — that ninth seat on the court.

How are we to think about the Supreme Court anymore? 

We have now gone the better part of this year, since Justice Scalia’s death, President Obama’s nominee can’t get through. 

Has this become a litmus test of the litmus test?

MARK SHIELDS: Judy, in a year of irresponsibility, this is a new depth of irresponsibility. 

To say that the constitutional mandate of a national election, where millions of Americans vote and pick a new president, that that president is — what that president does, and under the Constitution, of nominating judges and justices, is somehow moot, and I’m not going to pay any attention to it, that’s unacceptable.

It really is. 

It’s beyond irresponsible. 

It’s beyond reckless. 

It is really — I think it’s criminal. 

I basically do. 

And anybody who holds that position, I think it’s self-disqualifying for any public office.

JUDY WOODRUFF: We heard it from John McCain. 

And I guess, this week, there was a comment from Richard Burr, the senator from North Carolina, and others.

MARK SHIELDS: I think Senator Cruz has put on — I think Senator McCain did walk it back, but you’re right. 

He did say it on radio.

DAVID BROOKS: My views about this are like Mark’s, only stronger.

(LAUGHTER)

DAVID BROOKS: I think it’s in the Constitution. 

And we not only have rules in the Constitution the way it should work. 

The president should be able to nominate justices. 

But we have an etiquette around the Constitution.

And what’s happened in America is, that etiquette has been acidified away. 

And I hate the nuclear option of going for 50 votes in the Senate. 

But if they behave this way, then I think the Democrats might be justified and go to the nuclear option, because we actually have to have a government. 

We have to have people confirmed and put into office.