At the height of the budget impasse of 2011 I wondered why the hell Barack Obama sought the imprimatur of bipartisanship for policy decisions for which the Democrats would become unloved if not loathed during midterm and presidential elections. In boardrooms, classrooms, playgrounds, department stores, we appreciate conviction, however rudderless and bat shit. Dahlia Lithwick and David Cohen say enough already. Toying with the realization that had Donald Trump lost the Electoral College but lost the popular vote as Hillary his vassals would have sicced Roger Stone, the mummy of James Baker, and several generations of Federalist Society lawyers at the Supreme Court, Lithwick and Cohen bemoan the Democrats’ penchant for playing nice:
Moreover, they didn’t cop to the possibility that their theories might lose or look foolish in retrospect. Take the theory that ultimately succeeded in the Supreme Court. There was no precedent for the idea that the Constitution’s Equal Protection Clause required a uniform recount within a state. However, the Republicans pressed that theory and convinced a majority, even though the justices acknowledged that the argument was both unprecedented and not to be used again. It was a win for pure audacity.
Fast forward to 2016, and the Democrats are doing nothing of the sort. Instead, they are leaving the fight to academics and local organizers who seem more horrified by a Trump presidency than Hillary Clinton, Barack Obama and the Democratic Party. The Republicans in 2000 threw everything they could muster against the wall to see if it stuck, with no concern about potential blowback; the Democrats in 2016 are apparently too worried about being called sore losers. Instead of weathering the criticism that comes with fighting an uphill, yet historically important battle, the party is still trying to magic up a plan.
In other words, please present a bat shit theory. It may be laughed out of the court. Perhaps not out of federal courts in which Obama and Bill Clinton judges are majorities. “It is common sense to take a method and try it,” said the greatest Democratic president of the twentieth century. “If it fails, admit it frankly and try another. But above all, try something.” Don’t even admit it frankly. Try.