Nullification 2021

America’s factions of privilege have a long history with “nullification” in various forms, so it isn’t exactly surprising to see Republicans playing with the concept again. It’s at least a little strange to watch them open a door to judicial decisions carrying no authority unless one agrees with them right after they spent several years packing the federal courts with partisan Republican operatives, but that’s where we are.

Republicans don’t seem to have worked out any cohesive strategy for dealing with the January 6 putsch. To some extent this is a concentration of their overall problem dealing with Trump, but January 6 seems to have actually flummoxed them. The initial direction from leadership was basically “disperse, lie low, hold your breath” and the party seems like it hasn’t ever quite filled that vacuum.

First the Senate went into recess through the end of Trump’s term, effectively a refusal to look at any impeachment articles while Trump was in office. Then Republicans introduced the objection that “we can’t act on impeachment now because Trump is out of office.” This classic chutzpah is entirely typical of them, and they might have pulled it off if they still had the votes to control Senate business completely, despite the fact that the objection is not only hypocritical but totally false. Never mind obscure precedents; the Constitution itself says “The Senate shall have the sole Power to try all Impeachments.”

Republicans’ willingness to ignore that and claim that an impeachment trial is “unconstitutional” should shock people. If language that clear is “open to interpretation” then the Constitution might as well be oracle bones with no meaning except what judges say it has. But in a sense this is exactly what Republicans want: to transfer authority to an unelected, rigged judicial priesthood.

That strategy depends on judicial decisions having unquestionable authority, though, and now Republicans are actively flirting with a nullification doctrine. If Republican senators end up trying to evade reckoning with January 6 by saying “based on the evidence I would vote to convict Trump if the Senate had that power, but it does not so I have to oppose conviction” they will be declaring judicial decisions optional along with the language of the Constitution.

As Rep. Raskin pointed out, today, the authority with jurisdiction has made its ruling on the (specious) question of this trial’s constitutionality:

The Senate is the court, here, for better and (mostly) for worse. The panel of judges voted, and by a modest margin confirmed the obvious that the Senate can try these articles of impeachment against someone now out of office. If Senators nonetheless claim “I disagree with that so I’m voting against conviction even though I think conviction would be appropriate if it were allowable,” they’re engaging in nullification. Andrew Jackson “advisory-only judiciary” doctrine is back.

I don’t know if any Republicans will say precisely that “I would vote to convict but I believe it’s unconstitutional in these circumstances so I will oppose conviction.” I also can’t imagine that it will matter that much, in any direct sense. Republicans live and breath blatant hypocrisy and double standards. This one is, relatively, an obscure point in practice. Literally saying “this is not nullification of a judicial decision, the Senate is not a real court because um real judges wear black robes!” is incredibly silly if one says it outright, but it’s a silly distinction which feels so fundamentally true to most people that Republicans are unlikely to be pressed to explain, at all.

How much affairs are steered by relatively arbitrary, ritual distinctions like special garments—rather than by any semblance of a rational process—is worth more consideration probably.

But for whatever it’s worth, as one tries to hold onto critical thinking in the face of opposing trends, if Republican senators nullify the official ruling that this trial is constitutional, they will be reopening the door to nullification of other official rulings.

It will still be a long way, certainly, to a Democratic president saying “Chief Justice John Roberts has made his decision, now let him enforce it.” But if Republicans even inch America toward that possibility, it will be worth remarking even if only as one more sign that they have no kind of real strategy, just breaking things and looting.

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