U.S. Supreme Court: Post-Nino Edition

Yeah, my understanding is that there really haven't been that many instances in which there is a Supreme Court vacancy a) in an election year, and b) with the presidency and the Senate split, so whatever "precedent" has been established has been more a matter of happenstance.

Just from a detached perspective, "precedent" is not really a good reason for doing something unless there is a very clear expectation that both parties will observe that precedent consistently, and expectation is really the only benefit of that precedent. And if such things are needed, they're really better achieved by having clear rules rather than vague "precedents."

That's what I mean--they keep saying this as if there's already a precedent in place, with lots of actual historical examples that fit that distinction (and, implicitly, adhered to by both parties). Is there any truth to that?

― clemenza, Tuesday, September 22, 2020 10:41 AM (one minute ago)

xposts

no there, is not any truth to that.

there already was a precedent in place, pre-2016, which was simply hold hearings on the president's nominee. maybe if the nominee was controversial enough (like clarence thomas) there would be a battle over it. but there was nothing close to a "we don't seat a SC justice in an election year" rule. that was out of nowhere, a shameless power-grab from McConnell. it was fucking OUTRAGEOUS at the time, and i'm still fucking pissed about it. like, mcconnell STILL needs to fucking PAY for that.

now he's changing the "rule" or "precedent", 4 years later, and it just happens to benefit his political party. there was no rule or precedent, it never made sense in the first place. if you try to engage with mcconnell's new "logic" or "rule" on the face of it, you are getting played by him. his "rule" is whatever adds to republican power, he has no allegiance to trust or integrity or anything like that, he really doesn't

Good--my hate can flower unimpeded.

The precedent is raw power over principles, but the democrats don't appear to be aware of that.

i mean, am i crazy? remember 2016? when mcconnell pulled that move, it was traitorous in a way that was both shocking but slow-burning. first the shock, like "he can't do that!", then "he wouldn't do that, it's a negotiating ploy", then "he wouldn't do that, that is fucking VILLANOUS", then the reality set in. i remember mcconnell, in 2016, trying to come up with a transparently misleading "precedent" or rule, but it was very obvious back then that he was full of shit, from the beginning.

am i remembering that wrong?

no

Good--my hate can flower unimpeded.

yesssssss

*cackling echoes through the realms of democracy forgotten*

TBF, it's usually a good idea to come up with a fig leaf justification for your power grab, and republicans are good at that

xp thanks hadrian

i feel like i'm losing my mind here. not from clemenza's question about whether there really was/is any kind of rule about it, which is good and very straightforward. but i'm losing my mind over the way they are doing this AGAIN and there's zero effective pushback from democrats. zero plan.

ed markey got it right within a few hours of RBG's death, but of course a sitting senator in massachusetts is too much of a fringe political player to have any influence on the democratic party. here's how he got it right:

Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.

— Ed Markey (@EdMarkey) September 19, 2020

in other words, your rule is bullshit, everyone knows it, and now you're breaking your own bullshit rule. here are the consequences if you do it.

The GOP playbook at this point is basically to make every OTT fictional depiction of evil personified look like a flabby milquetoast in comparison.

Republicans don't care about the "consequences" because (1) there's no guarantee democrats retake the senate (in fact there are at least decent odds they don't) and (2) nothing to stop democrats from doing that anyway. That said, it's wise to lay the rhetorical groundwork for what we should do anyway.

Like Palpatine at this point would be like, 'whoa, Mitch, let's have a think on this before we act too hastily.'

McConnell has shown he's willing to lose Gardner, Collins, perhaps the Senate for the sake of a Court whose justices sit for life and will destroy the 14th AMendment.

fwiw I prefer circumscribed power and term limits/mandatory retirement age to court-packing, but that's a secondary concern.

McConnell has shown he's willing to lose Gardner, Collins, perhaps the Senate for the sake of a Court whose justices sit for life and will destroy the 14th AMendment.

― TikTok to the (Alfred, Lord Sotosyn), Tuesday, September 22, 2020 11:04 AM (twenty-five seconds ago) bookmarkflaglink

Of course, because he's playing the long game. You lose the senate, you can regain it next time, and in the meantime you have a court that can stop the senate from doing whatever you don't want it to do. Trading a couple senators and maybe even 2-4 years of senate control for that is like trading a pawn for a queen.

That's what I mean--they keep saying this as if there's already a precedent in place, with lots of actual historical examples that fit that distinction (and, implicitly, adhered to by both parties). Is there any truth to that?

he's cherry-picking a precedent that justifies his actions

OTOH: if you have a scenario where a justice is nominated but not confirmed before the election, and then Democrats win the presidency and the Senate, maybe the calculation changes. Then the Democrats have some leverage, although there's still nothing forcing Democrats to keep their promise. Until then, there is no reason for McConnell to negotiate.

Is there any way possible that the GOP can confirm a nominee before the election, and is there any way for Democrats to stall that?

term limits would almost certainly require a constitutional amendment - people have cooked up workarounds like "they'd still have the title of judge emeritus but would be retired unless there's a temporary vacancy to fill" but these are serious stretches of Article III. the appeal of court-packing is you can just do it legislatively; the downside is the other side can then do it too.

we really need a new constitution for this and the Sentate problem and many other things, but unfortunately a constitutional convention would likely be captured by Republicans because of, once again, the preponderance of low-population, right-wing states.

FYI, the "Biden rule" that McConnell likes to cite as precedent for not filling a vacancy during an election year was based on an argument Biden made in mid-1992 for postponing any potential SCOTUS appointment until after "the campaign season" (suggesting that the appointment could still be made in the period between the election and the inauguration). Note that there was no actual vacancy at the time, and Biden's comment was made in the wake of the contentious Thomas confirmation fight less than a year before, so it was a suggestion made within a particular political context, rather than a statement of principle to hold for all future scenarios. And the Republican Party did not adhere to it in 2016 because they refused to hold a hearing for Merrick Garland *at all*, even during the lame-duck period.

Has Romney at least feigned 'discomfort' or 'disappointment' before signing on?

xp -- fair point, but circumscribing the court's power can also be done legislatively. We could simply limit the kinds of cases the court can hear/decide.

Garland, or any other Obama nominee, was never going to be confirmed by the GOP senate before the election. The only reason for McConnell's B.S. rule was public relations--i.e. they figured it would look better to "let the voters" decide than to vote down a series of moderate judges. Also to calm down their base, which was freaking out when Scalia died.

If Clinton had won but the GOP had retained the Senate my guess is they wouldn't have confirmed a nominee even after the election or even during the first two years of Clinton's presidency. They had no incentive to do so.

October 2016:

In a vintage return to his confrontational style, Sen. Ted Cruz indicated that Republicans could seek to block a Democratic president from filling the vacant Supreme Court seat indefinitely.

After staking his endorsement of Donald Trump on a list of potential conservative Supreme Court nominees, Cruz said on Wednesday that there is precedent to limiting the Supreme Court to just eight justices

Instead of making up bullshit about precedent, I really wish everyone were just as honest about this as Donald Trump is:

“I think Merrick Garland is an outstanding judge,” Trump told “Fox & Friends” on Monday. “But the only problem was — and this is up to the Senate — the only problem was, President Obama did not have the Senate.”

″[Obama] didn’t get a lot of judges through because you know why? He didn’t have the Senate,” he said. “So again, that’s an election of a different kind. We had the Senate and the Senate didn’t want to do that, and Mitch didn’t want to do that.”

“So there’s a difference. When you have the Senate, when you have the votes, you can sort of do what you want as long as you have it,” Trump continued. “So now we have the presidency and we have the Senate, and we have every right to do it, and we have plenty of time.”

Yeah Trump is an unusual mixture of refreshingly frank and abysmally dishonest depending on what he's talking about.

Trump clearly sees governance as an elaborate game of Capture the Flag.

So does the electorate at this point?

remember, Trump sees all Democrat power as illegitimate. the idea that you'd even have to make up some justification is a foreign concept to him.

no, governance is what you get to do after you capture the flag

https://i.pinimg.com/originals/18/4d/79/184d793c54db20ab32db958609ba4faa.jpg

i always remember that quote from mcconnell in that long profile of him a couple of years back, where he said his polestar for what he ought to do in any situation is “what will lead to the most Conservative outcome?”

nothing i’ve seen since then belies it. it’s even weirdly admirable strictly from a technique/focus point of view

Apropos of nothing, I learned recently that director Albert Lamorisse (The Red Balloon) also invented the board game RISK.

Is there any way possible that the GOP can confirm a nominee before the election, and is there any way for Democrats to stall that?

― longtime caller, first time listener (man alive), Tuesday, September 22, 2020 11:16 AM

unless i'm misunderstanding something, i think that is the plan, and the gop have the votes to do it. i think romney's vote pushed them over the edge

i guess they can... filibuster? lol

It's a done deal, and 5% of the new judge's tax-paid salary will go to a medieval cult.

i guess they can... filibuster? lol

― Nhex, Tuesday, September 22, 2020 2:04 PM bookmarkflaglink

not as of 2017 they can't

McConnell killed it for Gorsuch's sake.

McConnell may have been driven by ideological concerns at one stage in his career, but those days are over. It's now just about holding on to power for the team, and personal enrichment (mostly via his wife's shipping connections).

nothing i’ve seen since then belies it. it’s even weirdly admirable strictly from a technique/focus point of view

― Li'l Brexit (Tracer Hand), Tuesday, 22 September 2020 17:56 (twenty-five minutes ago) link

It's ruthless, and it won't end at the judiciary level.

Apparently even if House voted to impeach Barr, the Senate could delay the trial or do it simultaneously with a hearing on the Supreme Court nominee. Not sure what impact of a delay on the continuing resolution would do , or a government shutdown.

remember, Trump sees all Democrat power as illegitimate.

― frogbs, Tuesday, September 22, 2020 12:39 PM

Democratic, please. It makes me sad to see the contemptuous slur-version of the party's name gaining traction even among allies.

hear hear

sorry if this point has been made but I really don't see much comfort in the idea of packing the court, because when the republicans take office again they'll just re-pack the court again, and this could go on essentially forever given that roughly half of the country supports trump

well if we don't we'll have a 6-3 court for the foreseeable future, at least it buys us some time

The thing is people tend to LIKE things like free healthcare, rights, safety and shit like that. And once that stuff becomes codified into law it’s harder to get overturned (BC so many of these jags rule on precedent) so getting desired outcomes and having people get used to them means they’re less likely to get rolled back in the future. So yeah you stack the court to get as many good outcomes as you can and dare future administrations to try and get rid of them.

What concerns me is most is actually what seems like a lack of Democratic foresight on this issue -- why aren't we seeing bullshit foundations called "The Society for a More Representative Court" popping up making arguments about how the 9-justice court is no longer sufficient to a country of 300 million people or that it places way too much power in a single justice's hands, which is anti-democratic and contrary to the intentions of the founders. We should not be calling this "retribution" and using it as a (worthless) threat when we have no leverage, we should be creating a legitimizing groundwork for it.

So sure, future Hypotehtical R administrations go ahead and stack the court again. Have fun running on eliminating healthcare as the demographics shift away from you

katherine, I considered the possibility, but, at the risk of glibness, I don't care: these are the tools Democrats have, and I couldn't live with myself if I didn't encourage them to do it. I supported removing filibusters of every kind too.

It's possible the GOP will say, "Expand the court? OK. When we get the Senate and White House back, we'll expand it to forty members, nyaaah!" But we don't know. I do know an expanded court with a Democratic president and Senate will get the results we want.