We live in a golden age of political stupidity, but I'm not being hyperbolic when I say this: The idea of pulling Judge Merrick Garland off the D.C. Circuit federal appeals court and into the FBI is one of the silliest ideas I've seen anyone in Washington fall for. It's like Wile E. Coyote putting down a nest made of dynamite and writing “NOT A TRAP” on a whiteboard next to it. It's also an incredibly telling chapter in the book that's been written since the Republican National Convention — the story of how Republicans who are uncomfortable with the Trump presidency gritting their teeth as they use it to lock in control of the courts.
On Thursday, as we reported at The Washington Post, Sen. Mike Lee (R-Utah) gave real oomph to an idea that had been bouncing around conservative media. Democrats had vetted and praised Garland when President Barack Obama nominated him for the Supreme Court — how, then, could they object to the idea of putting him in charge of the FBI?
The reasons to object were quickly explained by reporters and by liberal court analysts like Dahlia Lithwick. “Garland probably won’t want to give up his lifetime tenure as the chief judge of the second-most important court in the land,” Lithwick wrote, “and surely the most significant bulwark against Trump administration overreach, in exchange for a 12-minute gig on The Apprentice before he uses the wrong color highlighter and gets fired by a crazy person.” Among most court-watchers, the scheme was pretty obvious: Lee would give Republicans a chance to tweak a Garland-less court, changing a 7-to-4 liberal majority to a 6-to-5 majority. And in his tweet, Lee was explicit: If Garland went to the J. Edgar Hoover Building, Democrats wouldn't need a President Trump/Russia special prosecutor.
Yet what Lee apparently realized was that the churn of political conversation in Washington would get his idea looked at seriously. Lee floated the idea before the Senate's final votes of the week, meaning that senators of both parties would be available to reporters for hours. In that time, they were confronted with a shiny object — the Garland-for-FBI float — with little time to consider it. The conservative Washington Examiner went all-in on the story, getting Sen. Tom Udall (D-N.M.) to say that Garland “meets a lot of criteria” and Sen. Richard Blumenthal (D-Conn.) to say he'd back him, but Garland probably wouldn't want the job. (The Examiner also quoted Sen. Roy Blunt (R-Mo.) as saying “it would also create a vacancy in the important D.C. circuit, so maybe I like it better the more I think about it.” Well, yeah.)
Lee, who does not stop in the hallways to talk to reporters, must have realized that the senators who did would push the idea along. Democrats, after all, came to feel that Garland was a good man robbed of a job — their first instinct, when asked about him, was obviously to sing his praises. Their second thought might be to point out that this was a cartoonishly obvious ploy to give a conservative judge a lifetime appointment on a powerful court. But most people, hearing the idea, might not get to the second thought. Amusingly, a number of liberal opinion-havers glommed onto the Garland idea, apparently unaware that he was still on the court in D.C. From a former secretary of the treasury:
Merrick Garland as FBI director would avert what could be a long national nightmare. Trump should propose. Dems should insist.
— Lawrence H. Summers (@LHSummers) May 12, 2017
From a Democratic strategist who — literally one month earlier — was tweeting about how Garland could hold Trump accountable in the D.C. Circuit.
— Scott Dworkin (@funder) May 11, 2017
From Rep. Elijah Cummings (D-Md.), who stands to chair the House Oversight Committee if Democrats win the midterms.
— Kyle Feldscher (@Kyle_Feldscher) May 12, 2017
To be fair, the question put to Cummings was “What do you think of the idea, now being floated, to put Merrick Garland in charge of the FBI?” His answer: Garland would be “fine.” That's less hearty than the praise of Summers, whose tweet, as of this writing, is being roundly mocked by the (typically well-behaved) denizens of Politics Twitter.
But is it Summers's fault that the scheme wasn't obvious? Every reporter asking about Lee's idea knew that it was a ploy to open up a seat on the D.C. Circuit. Every Democrat or liberal observer has the power to recognize the ploy. Why have some of them been suckered?
The reason, I think, is a fanciful analysis of Trump's relationship with the GOP that has caused Democrats to make mistake after mistake for the better part of two years. For a long time, Democrats assumed that Trump would lose the Republican nomination. When he didn't, they highlighted Republican critics of Trump inside the party, in the hope of winning them over to Hillary Clinton. Some suburbanite Republicans did come over, but according to the exit poll, 88 percent of self-identified Republicans went for Trump, compared with 89 percent of Democrats for Clinton.
Six months later, Democrats are still obsessed with finding intra-Republican resistance to Trump. Some of that's just accepting reality — Republicans control Congress and most of the states, so they can stop Trump when Democrats can't. But some of it assumes an Aaron Sorkin-scripted conclusion to the Trump presidency. At some point, possibly, Trump's own party will stand up to him and bring him down. When Republicans say they want Garland for FBI, Democrats hear Trump's party in rebellion, because that's what they want to hear.
They are getting it exactly backward. Lee, like most Republicans, is willing to grit his teeth through most of what Trump does in exchange for priceless long-term conservative gains in the regulatory state and in the courts. Democrats understand this attitude when Republican voters display it. They know that many Republicans put up with Trump so that they could keep Garland off the Supreme Court and replace former justice Antonin Scalia with a conservative.
Famously, Lee was the first sitting senator to demand that Trump quit the presidential race after the release of live mic recordings that found him crudely joking about sexual assault. “If anyone spoke to my wife, or my daughter, or my mother, or any of my five sisters, the way that Donald Trump has spoken to women, I wouldn't hire that person,” Lee said at the time. What he said next was more important — Trump had become a “distraction” and needed to “allow someone else to carry the banner” to “defeat Hillary Clinton.” What Trump had done was horrible, but not horrible enough to countenance a vote for the candidate who could keep him from the White House.
At the time, Democrats heard this as the trumpet kicking off a “civil war” inside the GOP. It really wasn't. Some Democrats want this week's Lee gambit to reveal that Republicans are now bailing on Trump and ready for a real Russia probe. That's not what's happening. So far, the major Republican response to the firing of James B. Comey, from one of the party's leading Trump critics, is to suggest that Trump be given an open slot on a key court that can be filled by a conservative judge.