We spent 2022 consumed with multiple criminal investigations involving a former U.S. President, an insurrection at the U.S. Capital, consequential mid-term elections, the demise of Roe v. Wade, a surge of inflation, a resurgence of COVID, the war in Ukraine, another major school shooting, etc.  We’re starting 2023 with complete dysfunction in the U.S. House unlike anything seen in the past 100 years.

It thus comes as no surprise that we seem to have overlooked another far-reaching, if quite subtle, story centered around the Supreme Court of the United States.

I’ve previously weighed in on several specific SCOTUS rulings and on their broader legal implications.  I devoted a separate post to the devastating Dobbs v. Jackson opinion, accompanied by a related attempt at dark humor on a topic that is decidedly non-humorous.

Subsequently, however, a brand new perspective on SCOTUS was framed for me by an essay written for the Harvard Law Review by Mark A. Lemley, a Stanford law professor.  It’s a great read but it does need to be accompanied by a high-proof bourbon – both because it reads like an essay in the Harvard Law Review and because it makes some extremely worrisome observations about our current SCOTUS iteration.

The essay (and the bourbon) prompted me to gather several of my own remaining SCOTUS-related notes.  While each was a potential blog topic at some point, I’m combining everything herein to highlight one overarching fear:  That we have a Supreme Court trending further and further out of control.

Power Accumulation

Since I’m stealing Lemley’s title for this post, I’ll first try to briefly summarize his premise before I expand on it.

Lemley argues that this instantiation of the Court has proven to be alarmingly unique.  Since the 1803 Marbury v. Madison case, establishing the legitimacy of judicial review, there has been a natural tendency over time for various iterations of the Court to politically lean left or right, favor federal power or state power, tip the scales toward congressional authority or executive authority, and/or chose to champion individual rights or governmental control.  While we each have our own personal preferences, such swings of the SCOTUS pendulum are to be expected.

However, in stark contrast to the above, Lemley posits that our current Supreme Court is pursuing an orthogonal goal.  He suggests that they are systematically consolidating their own power at the expense of all other branches of government, at both the federal and state levels, often using contradictory legal arguments.  Unfortunately, Lemley makes quite a compelling case by examining the judicial reasoning behind numerous recent SCOTUS opinions.  I again suggest reading the essay itself where Lemley dissects a ton of cases (including a few that I’ve discussed in previous posts).  Just for example, however, here’s a sampling of his cited cases:

• West Virginia v. EPA:  transferring interpretive powers from executive branch agencies to the Court.
• TransUnion LLC v. Ramirez:  transferring the ability to recognize new causes of action from Congress to the Court.
• Tandon v. Newsom:  transferring power from States to the Court with respect to public health issues.
• Kennedy v. Bremerton School District:  granting the Court the ability to relitigate facts decided by lower courts.

Reactions to several individual SCOTUS decisions have largely obscured a bigger picture.  Those on the right who may be having orgasmic responses to the immediate implications of some rulings have yet to realize that the Court is basing its decisions on judicial concepts that merrily usurp power from everywhere, regardless of current party control.  Republicans may be surprised to find that SCOTUS-imposed limits on Congressional and executive authority will apply equally when next they control those branches of government.

Meanwhile, the Court is busily ensuring that the opinions of any five SCOTUS justices can not only override anything done by any other government entity of any political persuasion, but can also independently decide which issues they want to control.

This rapid disintegration of Constitutional checks-and-balances should scare the crap out of everyone, regardless of their politics.

Major Questions Doctrine

One of the primary tools of this Supreme Court is their newly invented “major questions doctrine” (which I discussed in a previous post in relation to West Virginia v. EPA).

While this “doctrine” was never cited in any majority opinion prior to 2022, it has been used extensively of late to support the recent SCOTUS power grab.  The doctrine holds that the Court can override the executive branch’s interpretation of any legislation on issues of “vast economic or political significance” even when a statute explicitly grants such interpretive authority to an executive agency.  Conveniently, the Court also claims that it alone can decide which issues meet that “significance” criteria.

Just last month, the U.S. Court of Appeals for the 5^th Circuit ruled in Louisiana v. Biden that the President lacked the authority to issue an executive order imposing a vaccine requirement on companies with whom the U.S. government does business.  Beyond the merits of the decision, of greater concern is the Court’s use of the major questions doctrine to deny the executive branch the ability to perform an obviously executive function as clearly granted by the legislative branch.  This was not a Constitutional issue.  The Court simply decided to substitute their own administrative preferences over the preferences of elected officials.

This blatant power grab should scare the crap out of everyone, regardless of their politics.

Shadow Docket

The Supreme Court is not limiting its ambitions to stealing power from other branches of the federal government or from state governments.  SCOTUS is also actively stealing power from lower courts in its own branch of the government.

While I hesitate to digress into a law school presentation (particularly since some of my readers are attorneys), I need to briefly define some context from a layman’s perspective.

Supreme Court cases arrive on two paths:  a “merits” docket and a “shadow” docket.

The merits docket includes the vast majority of named cases of which the public is aware and consists of around 60 to 70 cases each term.  These cases have usually gone through one or more lower courts where facts are established and opinions are rendered.  SCOTUS receives full briefings on these cases, hears oral arguments in public at pre-announced times, and produces a written majority opinion explaining legal rationales – often accompanied by separate concurrences and dissents.  Cases are finally resolved by the release of the opinions with the recorded vote of each Justice in a carefully orchestrated process on pre-announced “Decision Days” beginning at 10am Eastern time.

The shadow docket is, well, not that.  This docket has historically been where the Court rules on procedural matters – most of which are uninteresting except to the litigants.  These cases generally do not involve briefings or hearings and are often resolved with no written explanations or recorded votes.  They are often released in the middle of night – in the shadows, if you will – but are nevertheless important from a process perspective.

Over time, unfortunately, the use of the shadow docket has expanded to become a secretive process where major SCOTUS decisions are often rendered.  Indeed, SCOTUS can use its shadow docket to unilaterally bypass standard case progressions by reaching directly into the lower courts to claim and rule on cases with little to no written explanations.  Recently, contentious shadow docket cases have doubled – coinciding with the arrival of Justices Gorsuch, Kavanaugh, and Coney Barrett.

As just one example of many, in Louisiana v. American Rivers, SCOTUS used its shadow docket to simply reverse a lower court ruling that blocked infrastructure projects on environmental grounds.  Again, while the merits of the case were important, the major concern is that SCOTUS circumvented numerous standard judicial processes and rendered its imperial decision with no explanations whatsoever.  Even the conservative Chief Justice Roberts dissented on this case due to its procedural shortcomings.

This utter disregard for longstanding judicial practices should scare the crap out of everyone, regardless of their politics.

Stare Decisis

As was made readily apparent in Dobbs v. Jackson, this SCOTUS iteration has no problem directly overturning long-standing SCOTUS rulings made by previous iterations of the Court – even rulings that were reaffirmed by subsequent SCOTUS iterations.  While Dobbs was certainly the most publicized example, there are others.  In Vega v. Tekoh, the Court essentially overturned Dickerson v. United States – which upheld the Miranda warning requirement.

The principle of stare decisis – holding that previous judicial rulings are binding except in extremely rare cases – is a foundational guardrail of American jurisprudence.

This particular Court’s egotistical claim to unchecked power even over previous Courts should scare the crap out of everyone, regardless of their politics.

Court Leaks & Security

Much has been made about the as-yet unattributed leak of Justice Alito’s draft opinion overturning Roe v. Wade.  Alito complained that the leak put his and his colleague’s lives at risk and Chief Justice Roberts devoted most of his 2022 annual report to the need for additional judicial security.

Largely as an aside, subsequent reporting revealed that Alito himself most likely leaked the outcome of a 2014 SCOTUS opinion involving contraceptives to an anti-abortion leader (which apparently did not put his life at risk).

While violence against judges and justices is obviously unacceptable, I personally fail to see how members of the Court are entitled to internal privacy and special security considerations that aren’t equally afforded to others in government.

Secrecy has certainly been the accepted norm with respect to draft opinions of the Supreme Court.  Whether or not that is a good thing, however, is easily debatable.  Drafts of legislation are often published on official Congressional websites; drafts of executive agency documents can often be easily obtained.  And yet there are no cries for additional security given to agency heads and/or members of Congress.

Why exactly should Supreme Court justices be immune from public commentary on their draft opinions?  Why should peaceful protests against such drafts be any less acceptable than public protests against proposed laws and regulations?

The Court’s efforts to position itself as above public discourse and oversight should scare the crap out of everyone, regardless of their politics.

Code of Conduct

While most federal judges are bound by a Code of Conduct, justices of the Supreme Court are essentially immune from compliance.  SCOTUS justices are each independently responsible for policing their own conduct and are answerable only to Congress via impeachment proceedings and their subsequent (and highly unlikely) removal from the Court.

Ginni Thomas, the wife of Justice Thomas, was heavily involved in numerous efforts to reverse the 2020 election results.  Her involvement came to light only after a SCOTUS ruling allowed Mark Meadows’ text messages to be made available to the January 6 committee.  While Ms. Thomas eventually admitted to the committee that she discussed her efforts with her husband, she simply claimed that he wouldn’t be influenced by her.  That, of course, is wholly beside the point.

Even an appearance of partiality or impropriety should have been more than sufficient grounds for Justice Thomas to recuse himself from consideration of the case.  However, he chose not to self-recuse and was, indeed, the sole SCOTUS vote against the release of the text messages, including those sent by his wife.

The lack of any enforceable code of ethics governing the Supreme Court should scare the crap out of everyone, regardless of their politics.

Solutions?

So, assuming we’re all sufficiently scared, what can we do to alleviate our fears?

Sadly, not a whole lot.

As I noted in a previous post:

Article III, Section 2 of the Constitution gives the Executive and Legislative branches, acting in concert, the power to strip the Supreme Court of appellate jurisdictions.  They can thus declare that specific laws and/or entire issues are beyond the scope of judicial review.

It would thus be possible for the other two branches of government to reign in an out-of-control Court by restricting its authority in arenas where it oversteps.  This would function mostly as an invisible fence within which the Court might eventually be trained to stay.

A less direct, long-game approach would be legislatively impose term limits on Supreme Court justices.  Despite some opinions otherwise, there is nothing in the Constitution that demands lifetime appointments – and such appointments are an institutional mistake.  As a side benefit, term limits would also at least help to impose an age limit.  Many have argued for 18-year terms; some have argued for shorter durations.  While I’d personally favor a term of 10-12 years, the existence of any limit is more important than the duration.

Justice Thomas, for example, is 74 years old and has been on the Court for 31 years.  Over that extended period, and at that age, it is entirely understandable that he has developed a sense of omniscient entitlement accompanied by a callous detachment from current societal norms. Do we really want to continue to entrust our Republic to an aging, long-time neighbor who is constantly complaining about the kids on his lawn?  Do we need to wait until medical science can no longer keep him on the Court?  And, no, I’m not being ageist.  I’d be fine with senior SCOTUS justices being given emeritus titles and responsibilities, if they so desire.  However, when there are only nine seats on the Supreme Court of the United States, a few conditions seem highly appropriate.

Unfortunately, neither jurisdictional boundaries nor term limits are likely to be implemented as both are well beyond the abilities of our polarized and dysfunctional Congress.

For the foreseeable future, it appears that we’ll simply need to accept an Imperial Supreme Court as its majority continues to consolidate power.  We can only hope that they are occasionally kind to their lowly serfs.

Oh, great.  What 2022 needs is yet another opinion piece noting that our current political environment is polarized.  “Hey!  Have you noticed that water is wet?”

My end-of-year variation on this well-worn theme will be to first make a few observations and to then pose a serious question to my readers who reside somewhere to my political right.

As I’ve noted before, the current Electoral College structure and partisan redistricting have contributed to the impending disappearance of moderate politicians.  While I am saddened by a trend that I personally find to be undemocratic and contrary to the ideals of the American experiment, I unfortunately accept the fact that the trend is largely constitutional.  Since we have allowed our elections to legally become ultra-partisan exercises, we cannot be too surprised that such elections are often won by ultra-partisans.

There are obviously ultra-partisans in both major parties.  While glimpses of the occasional moderate can found in government, such sightings are increasingly rare.  The recent omnibus spending bill was a surprising example of bipartisan compromise – with neither party getting everything they wanted, both parties getting something they wanted, and the American public getting a functioning government.  Still, ultra-partisans are the new normal and old-fashioned statesmanship can now be found mostly on AMC and on re-runs of The West Wing.

However, there is a dangerous new breed of politician that happily draws well outside of the already distant lines of ultra-partisanship.  While crackpots and conspiracy theorists have always existed, they were historically consigned to the fringes of American society where they mostly served as easy fodder for late-night comedians.  It is only in our new normal that these zealots have directly involved themselves in organized politics, lustily grabbing at the reigns of an already unruly democracy.

And it is here that the “both sides are guilty” argument completely falls apart.

After the 2020 elections, 139 House Republicans and 8 Senate Republicans voted to overturn the election results.  It may be old news, but just let that sink in.  After numerous recounts and after losing ALL of at least 63 lawsuits related to the election, 147 elected members of the United States Congress voted to simply ignore the results of a democratic election that didn’t go their way.  And this wasn’t just a one-cycle issue.  In 2022, while most Republican election-deniers in swing states thankfully lost their elections, a Washington Post analysis of red states estimated that 177 election-deniers won their mid-term elections.

Unfortunately, anti-democratic actions are by no means this group’s only focus.  They have also voiced baskets of baseless, bonkers beliefs and/or have strongly defended others who did:

They have embraced militant, white nationalist, neo-Nazi beliefs.  They have variously claimed that all LGBTQ individuals are predators, that Jewish space lasers are a thing, that mass shootings in Las Vegas and Parkland were staged by the left as a pretext for seizing their guns, that COVID vaccines come with tracking chips, that completely fabricated resumes are just politics as usual, and that there is a “Great Replacement” campaign on the left to eliminate whites in favor of Jews, immigrants, and people of color.  I could go on.

For reference, here’s just a sampling of the Republicans serving in the crazy-right Congressional caucus:  Marjorie Taylor Greene, Lauren Boebert, Louie Gohmert, Elise Stefanik, Matt Gaetz, Jim Jordan, George Santos, Ted Cruz, Ron Johnson, and Josh Hawley.

So here is my serious question to my Republican readers:

Give me similar examples of crazy-left extremists currently serving in Congress who come even close to the above crazies on the right.

Please note:

• I will not accept Democrats whom you simply consider be be too partisan.
  • For every Nancy Pelosi you give me, I’ll give you a Mitch McConnell.  Both are ultra-partisans and both have acted like ultra-partisans.  However, agree with them or not, neither is a threat to American democracy.
• I will not accept Democrats with whom you strongly disagree from a purely policy perspective.
  • I’m not listing otherwise sane Republicans who are climate deniers, gun champions, and/or anti-abortion absolutists.  Don’t give me Democrats who espouse opposite policy positions.
• I will not accept Democrats whom you consider to be socialists.
  • Don’t even try to equate the fascism on the crazy-right with socialism on the ultra-left.  I’m not personally a fan of either, but there are plenty of perfectly fine socialist democracies.  There are no good examples of fascist democracies.

Enough with the false equivalency.

Give me names of people serving on the left that have challenged the basic tenets of democracy, who champion the violent overthrow of our government, who promote fact-free conspiracy theories, and who espouse racist, sexist, cultish, anti-science, anti-gay beliefs.

Good luck with that.

And Happy New Year!!

My previous post on the lame-duck Congress omitted a couple of very important priorities.  Both can be accomplished without the Senate and without the dedication of high-value time on the House floor.  House Democrats and their staffs will need to work overtime, but both of these issues can be handled entirely in House committees.

Finishing the January 6 Committee Work

The Select Committee needs to finish and publish their final report and make any appropriate criminal referrals to the Department of Justice.  The committee should then forward every single piece of background information they have to the DoJ, regardless of whether or not it’s related to the criminal referrals.  Some of the information they’ve gathered might be of assistance within other on-going DoJ investigations.  If not, the information dump will at least piss off House Republicans… and that alone makes it worthwhile.  If the Senate Homeland Security & Governmental Affairs Committee also wants the raw materials, they should get the information dump as well.

It’s not worth this committee’s time trying to hold the Orange Guy in contempt of Congress for failing to honor their subpoena.  He is in contempt, but that’s not the point.  There are much bigger crimes that will be much easier to prosecute and the effort here would just waste valuable floor time in the House.

Handling the Orange Guy’s Tax Returns

It took a VERY LONG TIME but a recent Supreme Court decision finally marked the end of numerous appeals.  The House just today received six years of the former president’s tax returns from the IRS.

The problem, of course, is that there’s just not a lot of time left to study them.

The rationale for the original ask was to allow the House Ways and Means committee to evaluate the effectiveness of current laws related to a President’s taxes.  If a billionaire president pays no taxes, there are only two possibilities:

1. If everything turns out to be perfectly legal, we need to:
   • examine the laws, and
   • change the laws.
2. If there’s evidence of anything illegal, we need to:
   • hold him accountable,
   • find out if he used his office to break the law, and
   • figure out why no watchdog caught it.

To that last point, current law requires that all presidential and vice presidential tax returns be audited.  Were such audits conducted?  What did they reveal?  The NY Attorney General found evidence of obvious fraud, so why didn’t a federal audit reach a similar conclusion?  Were the auditors influenced by the White House to look the other way?

Finding answers to these questions requires time.  Democrats simply don’t have anywhere near the runway to thoroughly examine what are likely to be very complicated tax returns, conduct an in-depth investigation with appropriate hearings, and make any necessary criminal referrals to the DoJ.  Republicans will most certainly bury the returns on January 3 if it’s left entirely to them.

So what should House Democrats do?

Legally, they “could” simply make the returns public to let everyone and their CPA have a crack a them.  However, I personally believe that would be a huge PR mistake.  Making the returns public would be seen as remarkably vindictive because, well, it would be.  While such vindictiveness would be entirely justified, Democrats should take a higher road:

1. The House Ways and Means committee should make a best-effort to dig through the tax returns in the limited time they have left and should publish a preliminary report outlining any issues they find.  That puts the follow-up in Republican hands who will trip all over themselves excusing any obvious fraud conducted by the former president.
2. Democrats should forward the returns to the Senate Finance Committee and let them conduct their own review in the next Congress.  If the Senate subsequently decides to make the returns public, that’s their call.

 

The 117^th Congress ends on January 3, 2023 and Republicans will thereafter control the House.  Democrats do still have a lame-duck opportunity to move some legislation, but their timeframe is quite limited.

The remaining calendar not only contains the holiday season but also includes the political distraction of the Georgia Senate runoff and a surfeit of internal Republican maneuvering related to the January 3 vote to select the new House Speaker.

While there’s no shortage of legislative possibilities, Democrats need to be brutally realistic and laser focused on the most important items that they can actually complete.  They can’t eat up precious time pursuing issues that have been political dead-ends for the past two years.  They can’t attach amendments to bills that will decrease its chances of success. They can’t waste time on show votes on bills that have no prayer of passing.

Even the important list is very aggressive, particularly since some of these measures will require cooperation from at least ten Republican Senators.  Here’s my wish list, roughly in my order of importance.  Your mileage may vary.

Increasing the Debt Limit

This game of chicken is dangerous and the debt limit shouldn’t be a political football for either party.  Refusing to raise the debt limit is not a means to reign in government spending.  Congress does that with spending bills.  The debt limit merely allows the government to service the debt on money that Congress previously approved and that WE’VE ALREADY SPENT.  Pretending there’s any connection to future spending is pure political theater.  A debt limit is, and always has been, a remarkably stupid idea.  Failing to raise it will cause the United States to default on its debt, lower our country’s credit rating, tank the U.S. economy, and throw the entire global economy into chaos.

Nevertheless, I am quite certain that a Republican House will want to hold the government hostage, using a debt limit increase to try to extract whatever unrelated concessions they can dream up.  The Biden administration and the Democratic-led Senate will not and should not negotiate here.  However, a Republican House majority will hold a live grenade and I have no faith whatsoever that they wouldn’t just pull the pin in spite and blow up everyone.

I want to believe that there are enough sane Republican Senators remaining to at least not get in the way of a clean lame-duck debt limit increase.  If not, Democrats need to use reconciliation to pass it by themselves.  That will eat up scarce floor time, but it’s absolutely necessary for Democrats to take this insane weapon away from Republicans while they still can.

Passing the National Defense Authorization Act

The NDAA is not a funding bill.  As its name implies, it’s an annual authorization bill for the military.  Funding that authorization is obviously important, but it’s a separate concern (see below).

For 61 years in a row, in dramatically different political environments, the NDAA has passed Congress with bipartisan support.  Failing to pass it this year would seriously hamper our military.  Among a massive list of impacts, it would halt some troop pay (including a 4.6% raise, hazard pay for service in combat zones, military bonuses, etc.), halt necessary military construction (including much needed military housing), halt military child care, and halt important military research.  Defense Secretary Lloyd Austin has said that failure to pass the NDAA now “will result in significant harm to our people and our programs and would cause harm to our national security.”  This isn’t a game and even Congress has recognized, for over six decades, that this is must-pass, non-partisan legislation.

Nevertheless, Presumed-Speaker-To-Be Kevin McCarthy has said that he wants to delay passing the NDAA until a Republican House can leverage the bill to change some military policies to appease their far-right wing.  Seriously.  It wasn’t that long ago that Republicans were military champions.  Now they’re just looking to increase their social media followers at the military’s expense.

I suspect (hope) that Republican Senators won’t want to play games with the military, so this should be a top candidate to pass during the lame-duck session.  If minor modifications are necessary to get ten Republican Senate votes now, Democrats just need to do it.  For example, Sen. Chuck Grassley (R) wants to add an amendment to punish OPEC for its oil production cut.  Dandy.  Pass the damn bill.

Passing the Electoral Count Act

There have already been significant efforts to try to construct legislation aimed at preventing another debacle like we saw after the 2020 Presidential election.  Sen. Susan Collins (R) and Sen. Joe Manchin (D) hashed out a bipartisan measure to address some of the major issues earlier this year. The Senate bill enjoys bipartisan support and has 30 co-sponsors, including 16 Republican Senators.  While a much more robust bill has passed the House, it has no prayer of passing the Senate.  Democrats could go through a time-consuming conference to verify that fact or they could just pass the Senate version and be thankful for what they got.  Either in-progress version of this bill will be DOA in the 118^th Congress.

Funding the Government

Government funding expires on December 16 and Congress needs to… do something.

Ideally, the lame-duck Congress would pass an omnibus spending bill for 2023.  They’ve been working on it forever and there’s been a ton of finger-pointing on all sides assigning blame for the lack of recent progress.  In truth, both sides have valid concerns given their respective priorities.

While passing a bipartisan omnibus bill is a definite long shot, it’s worth one last serious attempt and a two-week continuing resolution would give them a tiny bit of breathing room.  The good news is that Senate Appropriations Chairman Patrick Leahy (D) and Vice Chairman Richard Shelby (R) are both sane, are both retiring this year, and would both like to leave on a high note.  These two Senators are capable of coming up with a compromise agreement but, even if they can, it will be a massive struggle to get it through the full Senate.  Of course, it would then need to pass the Democratic lame-duck House who will want make their own modifications.  If an omnibus spending bill somehow makes it this far, someone will need to remind House Democrats that they lost their chamber and that they need to humbly accept whatever gift the Senate manages to put under their Christmas tree.

A less optimal, but more probable, outcome is for Congress to at least pass a continuing resolution to keep the government running at current levels well into 2023.  This simply kicks the can down the road, but it would be better than nothing.  Perhaps Congress could agree to add the proposed $40 billion package for Ukraine support to the CR since there’s currently bipartisan support for that in the Senate.

Alternatively, if none of the above happens, we’ll have a government shutdown just in time for Christmas. Fa la la la la.

Passing the Respect for Marriage Act

Subsequent to the Supreme Court’s Dobbs abortion decision, which opened the floodgates for potential attacks on other privacy-related rights, there has been an effort to legislatively protect same-sex and interracial marriages. Both parties sadly agreed to punt on this issue until after the mid-terms to avoid any political fallout.  However, there has been recent progress with a dozen GOP Senators helping to advance a bipartisan bill that provides the necessary protections nationwide.  It’s not a perfect bill but, again, it’s much better than the nothing we’ll get after Republicans take over the House.

Confirming Judges

This has become ever so slightly less critical given that Democrats will continue to control the Senate after January 3.  However, confirmation processes still need to continue with as much speed as possible.  There are currently 25 judicial nominations that have passed through the Judiciary Committee that are simply awaiting a Senate floor vote.  In addition, there are another dozen on so nominations that Senate Judiciary Chair Richard Durbin (D) says he will soon advance to the Senate floor. It would be great to have as many of these confirmed in the lame-duck session as possible.  Unfortunately, any unconfirmed nominations will expire on January 3, will subsequently need to be re-submitted by the President, and the new Congress will need to start all over again on each confirmation process.

Extra Credit

If, by some miracle, the lame-duck Congress ends up with additional time, there are certainly many other issues worthy of consideration.  However, they should not impact the passage of any of the above.  These additional issues include:

• Expanding the child tax credit. This is important but, since it’s probable that there will be sufficient Republican support to address it in the new Congress, it’s not an immediate priority.
• Passing a permitting reform bill.  This would ease construction of clean-energy infrastructure but should, again, garner enough Republican support to allow it to be punted to the new Congress.

Other

These topics have been raised, but have no chance of quickly passing and are thus a waste of lame-duck time.  Here are just a few:

• Reforming immigration policies.
• Restricting assault weapons.
• Restricting lawmakers’ stock trades.

 

House Democrats don’t need to like the fact that they’re lame ducks.  They just need to recognize what they are and waddle as best they can to the finish line.