He ideally should be able to, as long as the correct procedures are followed. Republicans, however, set the precedent by not allowing Obama to appoint one in his last year in office. My money, however, is on them ramming someone through anyways.
But that was a republican senate that had the power to confirm or not. Now you have a republican president and senate so if they want to ram somebody through they can do that.
The next logical step is that the Democrats will flatly refuse to confirm any future Republican nominee for SCOTUS, regardless of what year of the President's term it is.
Partisan politics is tiring. The US is steadily becoming more and more mediocre while the rest of the industrialized world improves, because we are focused more on winning petty battles than improving our nation.
In this case, it's about the preservation of our democracy (Trump has already indicated he will contest the election), so I don't think "petty" is the appropriate term.
There's no democracy to preserve. The Supreme Court is inherently anti-democratic. As is the electoral college, the Senate, etc.
The US Constitution is explicitly anti-democratic, and it always has been, as the founders intended. I'm not saying this is a good thing, I'm just saying that's what it is.
The anti-majority aspect should be obvious at this point: the President lost the popular vote (and indeed got the votes of only 26% of eligible voters), and the majority of the Senate represents a minority of voters.
The continual part is also essential. The less frequent the votes and/or elections, the less the public is able to express their wishes (and hold representatives accountable). Lifetime terms on the Supreme Court are the worst aspect of this. A member of the Supreme Court may be nominated by a President who lost the popular vote, confirmed by the Senate controlled by a minority of voters and whose members are only up for election once in 6 years. The Supreme Court justice then may hold power for decades, even as the "political winds" shift underneath the Court.
It's also important to note how difficult it is to change the laws, especially the Constitution itself. The Constitution was amended relatively frequently in the past, but now it's almost unthinkable. Separation of powers, checks and balances, mean that a determined minority can prevent pretty much anything from happening. They can completely thwart the majority from acting or changing the existing laws (which unfortunately have no expiration date).
Well democracy is ruling by the demos - think three wolves and a sheep voting what to have for dinner. The moment you say that mutton is off the menu you are limiting the power of the demos to rule. So it is anti democratic.
You are talking about direct democracy, which is but one kind of democracy. Representative democracy is still democracy.
Remember that Plato defined democracy in opposition to monarchy and aristocracy. Universal suffrage, freedom to form parties and to manifest against the government are (part of) what defines modern democracies. Even Switzerland only resorts to referendums in relatively rare cases.
> Well democracy is ruling by the demos - think three wolves and a sheep voting what to have for dinner. The moment you say that mutton is off the menu you are limiting the power of the demos to rule. So it is anti democratic.
Limited ≠ Anti
Representative democracy is also limited compared to direct democracy, for example.
I don't think anyone disputing that they can do it, the point is that it's hypocritical. And the Republican Senate didn't "not confirm" Obama's pick, they refused to consider him at all, arguably a dereliction of their duty under Article 2 of the US Constitution.
That's literally not what the word precedent means. We're not talking about historical counterfactuals, we're talking about the specific defenses and reasoning that's given for a specific decision. When the Supreme Court makes a decision on the basis of precedent, they're saying that the way a previous case was decided should dictate how this case is decided. Likewise, McConnell's claimed "reasoning" in 2016 was that a supposedly controversial president should not be able to elect a new Supreme Court justice in an election year. If that precedent stands, Trump should not be able to in 2020.
Mitch McConnell has been consistent on this since 2016, and he just made the following statement today regarding RBG's death:
> The Senate and the nation mourn the sudden passing of Justice Ruth Bader Ginsburg and the conclusion of her extraordinary American life.
> Justice Ginsburg overcame one personal challenge and professional barrier after another. She climbed from a modest Brooklyn upbringing to a seat on our nation’s highest court and into the pages of American history. Justice Ginsburg was thoroughly dedicated to the legal profession and to her 27 years of service on the Supreme Court. Her intelligence and determination earned her respect and admiration throughout the legal world, and indeed throughout the entire nation, which now grieves alongside her family, friends, and colleagues.
> In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.
> By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise.
> President Trump's nominee will receive a vote on the floor of the United States Senate.
It's happening whether we like it or not, and there's no "precedent" we can appeal to in order to stop it.
> It's happening whether we like it or not, and there's no "precedent" we can appeal to in order to stop it.
Again, you're responding to some point I haven't made. I'm not claiming there's any way to stop it, I'm claiming McConnell is a man without honor or even decency and that the United States is headed into the toilet.
I don't know why this is confusing to you. Absolutely no one says he can't.
To quote a great comment:
> McConnell had serious doubts that Obama’s nominee, Merrick Garland, would _fail_ to get a majority in the senate, so he forbade the nomination to come to a vote. So it’s a little different than you pose: you a pretending that Obama’s nomination came to a vote and lost (which would be entirely legitimate). The majority leader prevented that from even happening.
1/3 to 2/3 of the Senate is lame ducks. They are only in power because the utter devastation of the Trump era won't hit their ballot until 2020 or 2022. The "blue wave" of 2018 didn't wash over the Senate, only by mere luck of the random distribution of election years across Republican Senators.
To be fair, he’s right. The constitution says the senate gets to approve the judiciary, and the senate is comprised of state-weighted representatives. If the majority of states don’t want a judge, they won’t be appointed. This is basic constitutional law.
It’s the constitution, particularly the election process of the senate that’s wrong: There’s no reason every state, regardless of their population, should have equal say in who gets to decide the judiciary (among other things).
They can do it. But the very same Senate Majority leader set the precedent to not confirm appointments in an election year.
If McConnell violates this precedent that he set, I would strongly advocate for Democrats (whenever they have the Senate) to remove the legislative filibuster and increase the size of the SCOTUS to 17.
I would not be entirely surprised. There was a time when Democrats seemed to be intimidated by threats over nuclear options and such. Now that they know the truth, maybe they won't heed such warnings and decide that they need to win at any cost, just like their opposition.
That's really just the "end of the Supreme Court" argument. If you pack the Supreme Court once, it'll happen every time a new party has the senate and the white house.
Especially since you yourself suggest packing it to give an immediate "Democrat" majority, when it's incredibly likely, even without a new nomination, the Supreme Court remains republican for at least 8 years.
Personally I think this is what democrats (and people like you) are hoping for. It'd give an excuse to pack the court day one and maybe not immediately lose all public support.
That depends on how the court is packed, and how it functions after. It's possible that court packing could be seen as a success, even if each side alternates at packing, just because having many justices can minimize some of the court's current limitations.
To put it another way, the size of the House, Senate, and Presidency are determined by the constitution. The Judiciary is the only branch where it's size can be increased without a constitutional amendment, which could favor populism, regardless of who is in power, if it's expanded significantly.
Being as small as it is could speak to how the government has a tendency to concentrate/centralize power, even if it's relatively easy to spread that power out.
You are incorrect on one thing. The size of the House is not determined by constitution. The only things it guarantees are that there’s a census and that each state gets at least one.
I upvoted and agree with the GP comment, but some might be mad that he didn't go one more step back and explain that the Republicans had already decided to block nearly all of Obama's appointees for purely political reasons. So Reid was just responding to a prior escalation.
I think the simple distinction is that McConnel upset decades of detente and will reap enormous rewards and pay no price. Compare this to Joe Biden helping confirm Clarence Thomas because he believed it was the Senate's duty to give nominees a fair hearing and that the favor would be returned. That is over now and we're in a game of beggar thy neighbor. The salt in the wound is that Trump is only president due to antiquated rules that are set in law despite being a truly pointless tradition.
However when the democrats win the election (president and senate) this fall then democrats will be able to add 3 more members to the Supreme court in order to counteract the Republicans heavily slanting the SCOTUS with Roe v Wade advocates.
>before and after it was clear that he put bounties on American soldiers.
There is no proof Russia actually put bounties on soliders.
>Calling Americans soldiers losers and suckers.
No proof he did this except for McCain. Wouldn't be treason if it were true.
>Pardoning war criminals.
If this is the same case I know about then he was acquitted of war crimes. I doubt it would be treason though.
>Telling voters to commit election fraud by voting twice.
Maybe but I think he was trying to call out the risk on mail in voting. Most of media was not talking about the risks like people double voting. After his statement they talked about it. I think that was his point.
>And, last but not least, killing more than 200k Americans even though he knew perfectly of coronavirus risks.
Not treason and Trump is not really responsible for all deaths. Trump does not have the authority to do what people want him to do. That is on the states. If Trump locked down the states which would have been unconstitutional he would have been called an authoritarian.
> He ideally should be able to, as long as the correct procedures are followed.
Part of that procedure is having your party in charge of the Senate at the time of said nomination. Obama did nominate someone, he simply could not get him confirmed. That's on Obama (and Democrats more generally).
Trump will also nominate someone, and because his party has a majority in the Senate, that nominee will likely be confirmed whether Trump wins the upcoming election or not.
I am 100% certain that if Obama had a Democratic Senate majority when he nominated Merrick Garland, his nominee also would have been confirmed. (As a registered Democrat myself, I would have demanded it.)
There is no other precedent here: you accomplish in office what you can (procedurally) accomplish. Trump lucked out here; Obama didn't.
Where does this end? What keeps this principle from extending to a President's entire term, as opposed to just the last year? If Democrats ever retake the Senate, why should they ever hold hearings for a single Republican judicial appointment, let alone confirm one? Should judicial appointments just sit vacant until president and Senate are from the same party?
I think it's a perversion of the "advice and consent" language from the Constitution for the Senate to simply stonewall a nomination process until they get the President they want.
You're right. Unfortunately this is a natural result of having so many different veto points in this process and in the US governmental system in general.
I was just thinking today about why Canada's Supreme Court isn't remotely politicized in the same way as the US. Part of it may be that we're just not as partisan, but I think the main thing is that with our parliamentary system, if the party in power has a majority—which they do the majority of the time—they can basically pass what laws they want. Of course, they generally refrain from doing deeply unpopular things since they'll pay for it at the next election, although even that does happen: eg. the Mulroney (conservative!) government implementing a 7% goods and services tax. Probably played a large part of them being out of power for a decade+ immediately following, but was great for the country fiscally from there forward.
Anyway, since the government can largely do what they want, there's much less need or reason to essentially try to enact 'legislation from the bench'. I couldn't even tell you the political leanings of our SC justices.
There are still plenty of downsides to this system of course (lack of proportional representation comes to mind), but it does appear to be more functional in a lot of ways than the US. And probably not by accident—the Canadian system was developed almost a hundred years after the US, and had it and other more recent governments as models; it was also soon after the US Civil War, which played a part in Canada adopting a strong federal system with less provincial power, relatively speaking.
Of course, it's easy to say all that. Much harder to actually enact significant reform!
As Republican Senator Richard Burr said in 2016, after Scalia died, "...And if Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court."
At first I read your comment as “What keeps this principle from extending to a President’s entire team” and I recalled that Trump’s cabinet appointments were notoriously slow to get through the Senate, held up even by a Democratic minority.
McConnel had serious doubts that Obama’s nominee, Merrick Garland, would _fail_ to get a majority in the senate, so he forbade the nomination to come to a vote. So it’s a little different than you pose: you a pretending that Obama’s nomination came to a vote and lost (which would be entirely legitimate). The majority leader prevented that from even happening.
That is not what happened at all, he didn't hold a vote because he didn't want to and used an excuse that "Presidents shouldn't be able to nominate a SCOTUS judge in their last year". Now he's changing it to "majority party situation" and that is not what he said when he refused to hold any confirmations. He is a sneaky snakey weasel and has been for decades.
> [if] Obama had a Democratic Senate majority when he nominated Merrick Garland…
With a Democratic majority, Garland would have been confirmed. It's exactly because no Democratic majority in the Senate existed that Garland wasn't even voted on (and actually didn't even get a hearing).
Sure, but the fundamental issue isn't McConnell, it's that Obama seriously weakened Democratic control of both the House and Senate during his time as President. As a result, his party lost a Supreme Court pick.
No, the fundamental issue is that McConnell was the first and only Senate Leader to ever prevent a vote on a SCOTUS nominee, so there were no confirmation hearings at all.
> There have been 37 unsuccessful nominations to the Supreme Court of the United States. Of these, 11 nominees were rejected in Senate roll-call votes, 11 were withdrawn by the president, and 15 lapsed at the end of a session of Congress.
Note: 15 nominations were not voted on by the Senate, including Merrick Garland.
McConnell prevented senators from voting on a candidate they would have approved. This is hijacking representatives' voice because you're afraid to hear it.
McConnell is pretty transparent about his hypocritical political bullshit:
> "Oh, we’d fill it,” McConnell told supporters in Kentucky on Tuesday when asked what he would do if a Supreme Court justice died in 2020 while President Trump was still in office
Seeing trump as a cause and not a symptom or as the leading disaster for American democracy is a very common distraction.
McConnell is the heart of all of it. He is nothing but an appetite for power. He’ll do anything. No morals whatsoever (and I say that neutrally, as a fact and not a moral judgement.)
It's beautiful to see someone like McConnell, who understands political power and is able to use it fully and legally w/o overstepping. If Democrats had someone his equal then they would be pleased too.
Please remember that luck (chance) is an important and sometimes decisive component in conflict. Today it seems the Republicans are lucky; who knows what the future will bring.
> It's beautiful to see someone like McConnell, who understands political power and is able to use it fully and legally w/o overstepping. If Democrats had someone his equal then they would be pleased too.
Regardless of which side you're on - I don't think that's a worthwhile basis for political discourse and shouldn't be the modus operandi for what basically determines the development of a country.
Then again, you're right of course - the fact that McConnell and other don't actually overstep in legal terms just shows that the rule set isn't suitable for the current political climate in a time which is shaped by disregard of norms and mutual respect.
That's a fantastical interpretation. Reid pulled the nuclear option to stop Republicans from refusing to do their job (approve judges). McConnell would have pulled the nuclear option himself as soon as he got the majority, regardless of what Reid did.
McConnell is just doing what his constituents want. Otherwise, they wouldn't have voted for him repeatedly since 1984.
EDIT: One might argue that Mr. McConnell correctly anticipated the desires of the USA electorate because in November of 2016 they expressed a wish for more conservative judges in federal courts. If the voting public was outraged by McConnell's actions, one might expect they'd vote accordingly.
> It’s not like Mitch can singlehandedly control the whole senate.
He's Senate Majority Leader. That's literally exactly what he does.
Besides, he's whipped his party so hard they basically never break rank. Even Mitt "I'm not like the others" Romney votes with him nearly 100% of the time.
If you don't vote the party line then you get shown the door during your next election. They turn off the money spigot and nominations stop coming and they help your opponents (same party) get the R nomination. None of the current R senators have the backbone to go against that. Oh they say they will but when the day comes to vote, it's all just hot air.
Wyoming (the least-populous state) has .183% of the US population, so it should have .183% of the US House seats if they were fully proportional. It actually has .230% (1 / 435)--about 1.25× the power it should have. Rhode Island getting two House seats gives it about 1.34× the power it should have. Montana having only one seat leaves it at about 0.673× the power it ought to have.
As quantization errors go, the House's quantization isn't terribly distortive.
The alternative view is that CA, MA, and NY already get a Democrat candidate 95/270 or 35% of the way to the Presidency with just 20% of the population. Do those states really need a greater impact?
"Fair and just" is out the window as soon as others get to decide how the fruits of 40% of my labor gets spent without my consent. At this point, we might as well just change the rules as we go along because you can't really point to the system we have now and say "it's fair" or "just" in a 100% clearly defined and unambiguous sense that we can all agree on.
That is because the people of the USA don't want the ~40e6 people in California to be able to dictate policy for the ~2 million people in Kentucky. Most Americans are perfectly okay with this because there hasn't been any serious effort at an Amendment to grant each citizen with similar amounts of power in the Senate.
> Most Americans are perfectly okay with this because there hasn't been any serious effort at an Amendment to grant each citizen with similar amounts of power in the Senate.
This doesn't follow. There is no way to amend the Constitution by a national popular vote so the opinion of the majority of Americans is irrelevant to the question of any Amendment's passage.
A more likely reason such an Amendment wouldn't exist is that a majority of states favor the status quo, because most states are small and benefit from their current outsized representation in government.
One of the mechanisms for beginning the amending of the USA constitution is via a 2/3 vote of both houses of Congress. The USA House of Representatives assigns political power approximately proportionally to population and it has never passed any proposed amendment to proportionally elect Senators or delegates of the Electoral College.
Source: Article V
Edit: Corrected 3/4 -> 2/3
Edit2: I stand corrected. The Bayh-Celler proposal was passed by the House and filibustered in the Senate in 1970.
40e6 people in California aren't a bloc. The blueness/redness of a state is nothing more than the arbitrary balance of urban vs rural population. States are "purple" in actuality.
The major geographic divide in US politics is urban vs rural, not state vs state
His constituency is all of Kentucky. Senators do not split their states, they represent it as a whole.
McConnell rules through the consent of half the senate, not alone.
This is literally the purpose of the senate. We are a union of states, and the senate is where each state is granted equal power. One could argue that states should have been defined differently, but the point was that large states should not have absolute control over small states.
Edit: I'm loving the downvotes without comments. They're clear indication that some people are either not arguing in good faith or that they simply do not understand how and why the us is set up the way it is.
The only reason Mitch Connell withheld the nomination was to prevent a vote he would lose. Kentucky's representative prevented a vote where California's representatives would have had a say. Kentucky decided that California did not need to be consulted on this matter. This sort of behavior is hostile to representative government.
People are probably reacting to some combination of unnecessary partisanship and the false equivalency. McConnell stated that appointments should not be made near the end of term while the White House and Senate are split between different parties. That is not the case now, so it's hard to see how you can call him hypocritical. You can disagree, but I think you could find a more constructive way to disagree than that post.
What's more "unnecessary partisanship" then refusing to follow the Constitution because the President is of a different Party (a concept which is not part of the Constitution)?
Are you arguing that the Constitution requires judicial appointments to be made within a certain time frame? Where in the Constitution are you getting that from? It's certainly not in the appointments clause, or anywhere else that I can see.
What’s it worth? Ishtar lose the majority and possibly a couple seats? I think they take that, they have no ground to stand on the social issues alone.
It’s sad how many justices will be on the court, appointed by men that didn’t win the popular vote
What do you mean, too weak a president? The president can’t push back on that—-the senate confirms justices, that’s in the constitution:
... and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States...
>It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege. As the Supreme Court has said, “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ”
>It is in full accord with traditional notions of waiver to say that the Senate, having been given a reasonable opportunity to provide advice and consent to the president with respect to the nomination of Garland, and having failed to do so, can fairly be deemed to have waived its right.
For a long time, Senate approval was a rubber stamp. As the ability to legislate in Congress declined, Supreme Court nominees became a battle ground (see also “Robert Bork”). It would have been good to see him lobby not that he is able to get Merrick Garland, but that the process had been inappropriately politicized. That would have been a rebuke to both sides and maybe even a call for cooler heads to prevail. Just my $.02
Further, Bork was nominated knowing that he wouldn't be confirmed. A gambit that worked. The electoral backlash has served Republicans quite well since.
What do you mean "too weak"? It's literally impossible for the President to push through a judge who the Senate refuses to even vote on. There's nothing Obama, or any president, could have done. It's not within their power.
The thinking on this is that the rules, arcane as they are, say the Senate must “advise” on the Supreme Court pick (or something to that effect). So the argument is that Obama could have said, well, they were given an opportunity to advise and decided not to, so I’m going to fill the seat. The legality of this is grey, but it was discussed a bit at the time.
Clearly Obama should have just done an end-run around Congress, because that's how democracy works in America now, right? Just write an Executive Order and ignore the fact that it's totally and completely illegal. That would show "true grit," breaking the constitution and all...
Used his political (not official) powers to shift the public discourse more effectively. He did not make much effort to attack McConnell's brinkmanship.
If he pushed back, what good could it have done? He couldn’t force the Republican senate to hold a vote and even if he did force a vote, Republicans wouldn’t have confirmed his nominee.
Because it's not about consistency, it's about winning. And McConnell sure is doing a lot of that in terms of his agenda to stuff courts full of conservative justices.
At what point should a President, especially in their first term running for re-election, stop being able to fulfill parts of their duties?
Declaring war? Responding to an attack? Talking to other world leaders? Advocating Congress to act on matters? Signing bills into laws? Naming post offices? Being allowed into the Oval Office?
Independent of this specific situation, there has to be a line drawn somewhere. And that line is Inauguration Day. (A case could be made that some powers cease on Election Day for a lame duck President.)
Yes, the point is that Republicans violated the principles you are laying out here under the exact same situation. So violating this principle again in the exact same way would be the only non-hypocritical way to handle this situation.
One possible strategy for Trump (which would be very much out of character) would be to wait out of respect for RBG and/or the Garland precedent. Meanwhile, he uses the empty seat as a campaign issue to keep reluctant conservatives from jumping ship.
Yep. This is what I fully expect to happen. It's despicable, but it makes way too much sense. You motivate moderate conservatives, and if you win you get to claim the moral high ground. If you lose, you push a lame duck justice through anyway. This is a gift from a campaign strategy point of view.
I feel terrible focusing on the political maelstrom and not RBG's legacy, but these are also important conversations to have.
Trump most likely has had plans for this for months and knows who he's going to pick, expect a choice by the end of next week and confirmation within a month. They don't have much time to get a new person in there so they've had a plan for this for months, if not years.
Trump may try, but it will be interesting to hear the reasoning to rush it before November 4. If Trump is going to win, as he says he is, there is no need to rush.
I believe there is no precedent for the Senate confirming a Supreme Court justice in a lame duck session. If Trump loses to Biden and the Senate then confirms a Trump nominee in a lame duck session, that will probably be the end of the Supreme Court. I’d expect Biden and Harris to just stack the Court, and it to devolve from there.
Remember, there is no law requiring nine justices. Just a handshake agreement and precedent. FDR threatened the stack the Court unless he got his way. And who would ultimately determine the legality of stacking the Court? You guessed it, the Supreme Court.
I think most people agree that it should be the case that we nominate and vote on a justice regardless of the term, however for years ago Mitch set a precedent. He claimed it was because we should wait for an election, when really he was being purely obstructionist and his position now is hypocritical.
In short, it’s not the President’s fault. He should nominate someone. Mitch is the one who said the Senate should not vote. The Majority Leader does have some say over the duties of the Senate as it’s up to him to bring the vote. If it doesn’t change the duties and he was derelict of his 4 years ago then I would have hoped to see some repercussions.
Since you clearly don’t get the context, the Republicans made this a giant issue when Obama had an open Supreme Court seat towards the end of his term. Let’s call a spade a spade: the republicans have no regard for the constitution or laws of the land if they benefit from ignoring it. They will now ignore the precedent they set and place a new Supreme Court justice.
Ultimately, a President with a friendly Senate will always fill the seat. An unfriendly Senate is going to delay the heck out of it. Any rhetoric around that is pretty much just noise. They will send someone through as they've published a couple of lists and have been filling the lower courts pretty quickly. It is not like people weren't aware Justice Ginsburg was very sick.
Frankly, given the President, I would bet it will occur within the next week or two. I do wonder what the polling will be like on this issue. I can actually see a couple of scenarios where Democrats would want to run on a filled seat.
> An unfriendly Senate is going to delay the heck out of it.
You hit on the problem without seeming to realize it. The Senate didn't delay the heck out of anything. McDonnell flat out refused to do anything about Garland's nomination. He declared the nomination "null and void" based on no precedence, case law, and certainly not any interpretation of the Constitution. The Senate majority leader should not be able to shut down the Senate and prevent it from performing its Constitutionally mandated tasks. If the Senate didn't want to confirm Garland they should have held all the appropriate hearings and held an approval vote. If it's the Senate's will that Garland not be approved that's fine. It was singularly McConnell's will that Garland not be approved so he just never allowed hearings. No matter your political leanings that should be seen as abhorrent if you profess to want law and order.
You hit on the problem without seeming to realize it.
Wow, being a bit insulting there. I am stating how it works. The Senate Majority leader can do it. That's how it works. Supposed to doesn't really matter when talking about what will happen.
> He declared the nomination "null and void" based on no precedence, case law, and certainly not any interpretation of the Constitution.
Ultimately a legislator's job isn't to respect precedence or case law. It's to create new law (and presumably precedent).
I don't think your point is unfounded, I just think arguing for a legislator to behave like a judge takes away from that point (unless you have a good argument why they should, but I think including that argument would be good at that point).
Early noise on Twitter is that Biden’s response to a filled seat is an expansion of the court to 11 seats.
Not sure what the calculus is. If it’s unfilled, Biden will fill it. If it’s filled, he’ll expand the court. Not sure if that also depends on a senate flip, but I have a hard time believing the senate doesn’t flip during a Biden win.
It would be a proportionate and appropriate response, and hopefully restore an equilibrium in response to a constitutional crisis provoked by McConnell.
Far from a disaster, it will be something approaching mandatory to restore faith in the institution. The disaster already came. But because this response would come in the future and the disaster happened in the past, some people have the psychological reaction of thinking that a new thing is unacceptable while uncritically accepting bad things that have already happened, which is called shifting baseline syndrome.
It is correct to say that they have had plenty of time to provoke a constitutional crisis. It is also correct to note that they could have resorted to abusive procedure even worse than the one they already did. Which is like saying they created a category four hurricane instead of a category five.
I'm still surprised the Democrats try to discuss compromise at this point. You can't compromise with someone running a madman strategy, realistically I don't know any true independents on the political spectrum at this point.
The Democratic Party legislates as if it represents all Americans. Which means compromise.
Rarely has the Democratic Party held all three branches recently. Holding the senate is a huge win for the republicans - they can be as obstinate and block things and only need a barest majority to do appointments and many other procedural shenanigans.
Like what the fuck is the house supposed to negotiate with? “We won’t pass bills”: the republican senate is entirely happy not to have bills passed. Now what?
The Republican Party is entirely devoted to debasing government and spoiling the notion of governance.
Well, the house explicitly has financial powers, and they can impeach officials. If the house was republican and the senate was democratic, you would see much more financing for projects Trump wanted. Like, just to make up the most ridiculous example we could think of, a giant wall...
Respectfully, you probably do know independents. We just don't often talk about our political views to people who say compromise is dead and you have to be on one side or the other.
I'm an independent, who will be voting Democratic. The Democratic party is spineless, corrupt, and oddly radicalized in some ways. But at least they're not explicitly trying to undermine pillars our constitution and democracy are built on. The Republican party has shown they are enemies of a free America, opting to focus on wealth and power concentration.
To me, being independent means recognizing that both parties align themselves with some things I do not stand for, and some things that I do (though to be fair, the Republican party holds almost no views that I hold at this point). That doesn't mean I view them as equals, and that doesn't mean I'm on the fence. I'm throwing in with Democrats this time, but I'm very far from calling myself a Democrat.
I think you misunderstand how independents think. I'm not sitting on any fence; I have pretty strong political beliefs, which just don't align well with either of the major factions in modern American politics.
It's more like the congress exercised there constitution power to do fuck all if they wanted. Just cause it's a shitty thing doesn't make it un-constitution. What happened to Obama was his party didn't have the votes to approve someone so it didn't happen that's it.
If they hold hearing for a 45 nominee before the election, they prove they were acting in bad faith. The expectation is that the president gets to appoint judges during his term, unless there is a reason to deny the nominee. By denying that they challenge the power of the executive branch. I.e. Does the president only get to pick a judge if the senate is a majority from the same party?
It's a bad faith enforcement of the constitution. In democracies like the US, precedents are as powerful as laws. This was not literally breaking any laws, but this was as bad as breaking a law.
Doing things that are so obviously destructive to the whole institution of government that the Founders thought it wasn't worth writing down in the era of quill pens on sheepskins, because they couldn't imagine anyone being evil enough to do it? Yes, that's what bad faith is. It's things you can technically create a justification for that contradict all decency.
Yes and there is tons of case law on what the Senate actually needs to do and the result is "fuck all". The Federal government is designed to gridlock rather then forcing things to happen.
No, what happened is that Mitch McConnell refused to even allow a vote, and even Republican senators wouldn't have been able to vote for the centrist proposed by Obama.
There's no probably about it or thinking required. That is literally the law. The President nominates a replacement, and the Senate votes to confirm it or not. There are plenty of layers of politics, posturing, and pomp added on, but the law is simple and clear.
I mean legally it's always been this the Supreme Court has been very clear on every cases regarding confirmation that Congress is free to act or not act at it's leisure.
This wasn't always the case, here's an excerpt from the wiki on recent changes making this the case:
"Senate cloture rules historically required a two-thirds affirmative vote to advance nominations to a vote; this was changed to a three-fifths supermajority in 1975. In November 2013, the then-Democratic Senate majority eliminated the filibuster for executive branch nominees and judicial nominees except for Supreme Court nominees by invoking the so-called nuclear option. In April 2017, the Republican Senate majority applied the nuclear option to Supreme Court nominations as well,[2] enabling the nominations of Trump nominees Neil Gorsuch and Brett Kavanaugh to proceed to a vote.[3][4] "
The filibuster has always seemed anti-democratic - it’s not in the constitution, and I’m pretty sure that historically it was a way to make give the minority senators more power at the expense of the people.
To be fair, they passed the ruling for non-supreme court justices. Republicans extended it to include them in 2017. Still, an example of terrible governance and foresight on both sides.
That would be incorrect, unless you are talking about a regular federal judge and not a Supreme Court justice. In the latter case, it was a rule the Republicans changed in 2017 to benefit themselves.
I find this “thems the laws” theme in this thread pretty outrageous. Congress used run on decorum, arcane rules, and norms. Those norms were thrown out the window when the Senate refused to even have a hearing on Merrick Garland. Arguably, they had a legal requirement to do at least that. But now we’re supposed to pretend that “rules are rules”, and this is all totally normal.
I was specifically replying to the comment "they aren't following the constitution or laws".
Sure, it may be very hypocritical to fill the seat before the election, but has politics not been hypocritical? And in "norms", the refusal to have a hearing on Merrick Garland is not the first example. Congress flouting "norms" goes back centuries.
Obama had more time left than Trump so the hypocrisy coming out of the Senate will be that much richer.
> “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,” McConnell said
> “You’d have to go back to 1888 when Grover Cleveland was in the White House to find the last time a vacancy created in a presidential year was confirmed by the party opposite the occupant of the White House,” McConnell said in March 2016
> “We think the important principle in the middle of this presidential election, which is raging, is that the American people need to weigh in and decide who’s going to make this decision,” McConnell said
> Speaking in his home state of Kentucky on Tuesday, McConnell was asked what he would do about a high court vacancy if a seat were to open up [in 2020].
“Oh, we’d fill it,” McConnell said
Precedent doesn't mean anything because what happened wasn't a legal ruling. None of the rules changed. Senate acted the way it was allowed to and will act the way it is allowed to now as well to get our guy in and keep their guy out.
This is a laughable inability to distinguish between 'I don't like it' and 'it's unconstitutional and illegal', mixed with obvious massive hypocrisy.
When the Republicans refused to confirm Garland, they did it fully within the processes laid out in the constitution.
If the Democrats had the senate now, we can guarantee they would have blocked every Trump nominee past and future. Or do you think they would have allowed Kavanaugh through? Of course not, they tried everything to stop him, inside and outside the process. And I know you cheered their efforts.
You're just being massively hypocritical. You want the Dems to block Trump nominees by any means necessary, but if elected Republicans simply use established processes to do the same thing it's "no regard for the constitution".
EDIT: Clarify garland situation, doesn't change the point.
Do you know how laws are often interpreted? It's asking what is the faith and meaning of the law, NOT what is literally written in paper. This means past precedents are incredibly important for defining what a law is. Refusing to hold a vote for a nomination of a qualified supreme court justice is not against the law on paper, but it is against the meaning of the laws and the precedents of how the president interacts with the supreme court.
It is not the senates job to decide if a nominee is worthy of being nominated, or if the president should make a nomination. It is their job to vote on the nominee. They did not do that.
The word you're looking for is 'norms' not 'precedent' (since this wasn't a court case).
And yes, I agree, the norms have gotten way shittier over recent decades. Both sides participated in this, back to the character assassination of Robert Bork, and the dems reneging on their promises around the Reagan migrant amnesty and probably before.
It is hypocritical and childish to put that all on one side.
Merrick was a pretty moderate choice who had been praised by many Republicans. Since they never voted on him, we don’t really know if they would have changed their minds and voted against him.
Time for some history. The GOP senators never expected a moderate like Merrick Garland, who was named by senators in the news before Obama announced his confirmation.
Obama is more of a realist than many in his party. He knew going in that no one would make it through the Senate, and that's why he nominated Garland. Why waste a quality Democrat jurist on a lost cause? I bet he was tempted to nominate Kavanaugh...
I believe the parent comment was mocking the exact stance that Republicans took four years ago, and the fact that they will very certainly not take that stance this time.
True, but we’re talking politics and politicians. Compare Biden before and New Biden on issues. They ALL would do that. There is no real holier than thou politician.
"In the run up" meaning that Scalia died in February 2016, nine months before the election, and the very solemnly contemplative senator from Kentucky announced “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president."
It wasn't even in the "run up" to the election - Scalia died in early February. Garland was nominated in mid March. Obama had 10 more months in the Presidency (~23% of his presidency left when Scalia died and McConnell said we shouldn't fill a vacancy in an election year).
Not sure why you are downvoted, this is correct. What the R's did to Merrick Garland was a disgrace. What kind of wink and a nod agreement is that? They should codify this into law, not keep perpetuating it forever. How long until it's 'oh, he's only got 3 more years left...lame duck!'
