The President's and Senate's Duties When a Supreme Court Vacancy Arises During an Election Year

Here's what some very prominent progressive law professors have to say.

A couple of dozen progressive constitutional law professors, including several very prominent ones, have written a letter that, taken seriously, means that President Trump has a constitutional duty to nominate a new Supreme Court Justice and the Senate has the duty to hold a floor vote this year. Here's an excerpt from their argument:

Article II of the Constitution is explicit that the president "shall nominate . . . judges of the Supreme Court." There is no exception to this provision for election years. Throughout American history, presidents have nominated individuals to fill vacancies during the last year of their terms. Likewise, the Senate's constitutional duty to "advise and consent" – the process that has come to include hearings, committee votes, and floor votes – has no exception for election years…. We urge the President to nominate as soon as reasonably possible an individual to fill the vacancy existing on the Court and the Senate to hold hearings and vote on the nominee.

Of course, they wrote this in 2016, and almost certainly did not mean it to be taken seriously now that the shoe is on the other foot. But it might be worth asking them.

Note that the letter in question has mysteriously disappeared from the American Constitution Society's website, but still can be found via the Wayback Machine.

UPDATE: Note: The argument in the letter regarding the Senate's duty was silly when it was made, and it's silly today, but any law professor who publicly makes a constitutional law argument when it benefits his "team" should be willing to stick by it when it benefits the other side. Yet I doubt that any of the signators will be publicly repeating this argument this Fall.

Meanwhile, a Twitter follower managed to find the letter on the ACS website, so apologies for implying that they memory-holed it, I couldn't find it at the original link nor via Google.

FURTHER UPDATE: A very similar letter was sent by 350 or so law professors to the Senate Judiciary Committee, concluding: "The Senate Judiciary Committee should hold a prompt and fair hearing and the full Senate should hold a
timely vote on the president's nominee."

Comments

[Krychek_2]

Except that's not what actually did happen in 2016. The GOP has now established a precedent of not confirming Supreme Court nominees in an election year; they should be stuck with the precedent that they set.

[David Bernstein]

It would be a strange sort of constitutional duty that disappeared because it was violated once.

[Krychek_2]

It's not about the duty, it's about how the duty is carried out. It doesn't say *when* the president shall make the nomination, or *when* the Senate shall advise or consent.

As a matter of policy, I would advocate changing the rules so that any nominee who has not received a vote within a reasonable time (say six months) would be deemed confirmed. That way, if a particular nominee is objectionable, the Senate can vote him down, but it can't engage in Garland style obstructionism.

[David Bernstein]

The lawprofs say "as soon as reasonably possible."

[Krychek_2]

The law profs are entitled to their opinions. Where does the text of the Constitution itself put a time limit on it?

[WuzYoungOnceToo]

The law profs are entitled to their opinions.

Which is the subject of the post you responded to.

[Lee Moore]

Kryckek 2 :The law profs are entitled to their opinions. Where does the text of the Constitution itself put a time limit on it?

Well done, my young apprentice. Now do abortion.

[Krychek_2]

The constitutional provision protecting abortion is right next to the one protecting the internet from government censorship, and the other one that forbids burning at the stake. In other words, it's part of a broader principle.

That's different, though, from a discussion in which we all agree the President nominates supreme court justices and the Senate confirms them, and the quibble is over whether there's a timeline and if so what it is. In other words, this is a process question; abortion and internet censorship are substance questions.

[Jmaie]

"...quibble..."

Heh.

[Dr. Ed 2]

Ummmm... the 8th Amendment was written to explicitly ban things like "burning at the stake."

[Dr. Ed 2]

The words "cruel & unusual punishments" appear in the text -- the word "abortion" does not.

[Krychek_2]

And you're placing your interpretation on what's cruel and unusual punishment.

[Krychek_2]

Dr. Ed, it may interest you to know that South Carolina executed someone by burning at the stake as recently as 1830: https://www.executedtoday.com/2011/05/01/1830-the-slave-jerry-the-last-american-execution-by-burning/

That said, though, the words "burning at the stake" appear nowhere in the Constitution. Just like the words "abortion", "internet censorship" and "large magazine firearms" also don't appear anywhere in the Constitution. So whether you're a liberal or a conservative, the idea that "the word X appears nowhere in the Constitution" doesn't resolve the issue. The real difference between liberals and conservatives is a disagreement over what types of issues aren't resolved.

[iowantwo]

The constitution says judges shall be appointed upon the advise and consent of the Senate. There is no requirement the Senate take action. They can ignore the nomination. And often do.
Just like legislation must be passed by both houses of congress and signed by the President. But none of the 3 named parties are obligated to do so.

[Brett Bellmore]

I'm on board with that proposal, too. I was fine with voting Garland down, but thought he got rotten treatment just being ignored.

[Commenter_XY]

Brett....IMO the alternative was voting Garland down, and that would have been much worse for him. Imagine that black mark. And the humiliation. No, Senator McConnell took the best option he had. He did not waste the Senate's time, and he did not subject Judge Garland to hyper-partisan bullshit.

[Krychek_2]

If McConnell had the votes to vote Garland down he’d have done so.

[Dick King]

He had the votes, but Mitch wanted to spare specific Republicans difficult votes in what was for them election year too.

-dk

[NToJ]

Everyone knows that McConnell lied but only half the people care.

[Josh R]

Or perhaps Garland would have been confirmed had it come to a vote by the full Senate?

[Lee Moore]

Even if he'd been given a hearing, 14 R Senators would have had to vote to end debate to bring him up for a substantive vote. Name those fourteen.

By way of a hint, only five Rs voted for Kagan - six years earlier in the judicial confirmation wars, and before Harry Reid's nuclear strike.

It was never gonna happen. The question was simply how Mitch could minimise the political fall out from not confirming Obama's nominee. In the end it was a net positive as strong evangelical turnout, motivated in part by the SCOTUS vacancy, put Trump over the top and preserved the R Senate majority.

[Josh R]

I wonder if the Republicans would have filibustered. There was a norm that Supreme Court nominees are not filibustered (see for example, Clarence Thomas).

[Lee Moore]

But not that normy a norm, as Abe Fortas would have reminded you.

[Lee Moore]

Also as Ted the Canuck pointed out, a President in the final year of his term has offered a SCOTUS nominee to a Senate controlled by the opposing party ten times. Only two got confirmed.

So it looks like the Senate usually finds a way to deny the President his choice.

[Josh R]

Assuming the Fortas case set a norm, both the Thomas and Alito cases reversed that norm. Assuming as you argue there is no norm, then the Gorsuch case reversed that practice by setting a norm. Either way, the Republicans have shown little regard for precedent in getting their way. Democrats need to do likewise and should use the threat of court packing as a deterrent.

[Josh R]

When the president and senate are of the same party, five of seven nominees have been confirmed. But before you rush in and say that establishes a norm regardless of what McConnell argued, four of the nominees (all confirmed) were made in January. Only one out of three nominated after that was confirmed.

[NToJ]

@Josh R,

"Either way, the Republicans have shown little regard for precedent in getting their way. Democrats need to do likewise and should use the threat of court packing as a deterrent."

If there is something wrong with showing "little regard for precedent in getting their way"--and there is--the Democrats cannot distinguish themselves from Republicans by engaging in ever-escalating precedent shattering.

What they should do is commit to being better than Republicans and then capitalizing on that difference come elections.

[Josh R]

NToJ,

I cannot agree. Deterrence isn't a disregard for precedent. It's a threat to maintain precedent. The alternative gives up too much in the near term for an uncertain reward in the long term.

[NToJ]

@Josh,

It cannot work like that in politics. Deterrence is totally ineffective if removed temporally. Every act is distinguishable.

The only way to win this game is to take the high road. There is no uncertain reward. Taking the high road is the reward.

[Josh R]

I don't understand what you mean by a deterrence being removed temporarily.

[NToJ]

@Josh,

I mean that deterrence is ineffective if the deterrent is far removed from the crime, by the passage of time. You can't deter people effectively that way. There's no reason to think delayed deterrence would work any better on institutions.

[Krychek_2]

Thurgood Marshall was, but that was fifty years ago.

[Josh R]

How could Marshall have been filibustered given that the Senate confirmed his appointment?

[Krychek_2]

Not all filibusters are successful.

[Lee Moore]

Just so. Alito was filibustered too - it was just unsuccessful.

It's diffcult to get one's fingers round the throat of a norm if lots of Senators regularly flout it, and you count norm-adherence or norm-defection by the happenstance of whether sufficient Senators flout the norm to flip the result.

A norm usually reflects an expected mode of behavior, not happenstance.

[Lee Moore]

And if you wanted to posit a norm for SCOTUS filibusters given the problem I alluded to - measuring the norm from the behavior of a lot of individual Senators, you might select the behavior of the Senate Minority Leader, as the "official" representative member of the Senate minority.

In Alito's case Harry Reid was the Minority Leader and he voted against cloture. So I'd say that no SCOTUS filibuster norm was toast by 2006.

Neither Sotomajor nor Kagan were filibustered post 2005, but that simply represents greater restraint by the GOP. I'm not sure you can have norms whereby the Big Endians have a norm that filibustering is OK, but the Little Endians have a norm not to filibuster.

Either way, I think we know the norm now. Filibustering SCOTUS nominess is fine.

I also venture to suggest that we also have a new norm in re the McConnell / Biden rule. Which is that if the Senate is controlled by a different party to the President, the Senate will not be confirming any SCOTUS nominees, not just in the last year of the President's term, but in the last four years. And maybe this norm applies to all nominees.

[Josh R]

I would say the norm is that a nominee can be confirmed with less than 60 votes.

[Lee Moore]

Miguel Estrada would beg to differ.

[Josh R]

The norm was, until Garland, Supreme Court nominees are appointed when they have 51 votes to confirm.

[Lee Moore]

Josh : The norm was, until Garland, Supreme Court nominees are appointed when they have 51 votes to confirm.

And ditto for Appeals Court judges until 2001. The norm changed.

And in 2006, the post Abe Fortas norm that Senators do not resort to the filibuster to try to impose a hurdle higher than 51 for SCOTUS nominees was abandoned by the Senate Democrat leadership.

And in 2016, there's no evidence that there were 51 votes for Garland.

So, if you don't count Abe, and you don't count the filibuster of Alito cos it failed, and only want to count cases where we know the filibuster worked AND that there were 51 votes for confrmation..well it wasn't Garland. It was Gorsuch.

[Josh R]

Either Garland had 51 votes, in which case the 51-votes-is-sufficient norm changed with Garland. Or, he didn't have 51 votes, in which case the I-won't-categorically-reject-a-nominee-in-an-election-year norm changed with Garland.

[Josh R]

Packing the court is not far removed if the Democrats win both the Presidency and the Senate in the upcoming election.

[epsilon given]

And now that the Democrats have put the option on the table, I'm sure they'll be just fine if the Republicans decide to pack the Court, if they keep the Senate and White House, and win the House as well.

After all, Harry Reid promised ending the filibuster for Supreme Court Justices; it's such a pity that it was Mitch McConnell who fulfilled the promise for President Trump's appointee, instead of Chuck Schumer for Hillary's nominee.

[NToJ]

"Even if he’d been given a hearing, 14 R Senators would have had to vote to end debate to bring him up for a substantive vote. Name those fourteen."

The counterfactual is that a Republican-majority Senate would filibuster Garland? That doesn't make any sense, they could just vote him down. Why would Republicans have filibustered Garland?

"The question was simply how Mitch could minimise the political fall out..."

There are more important things for the country than Mitch minimizing political fallout for the political decisions he makes. The entire affair was not a "net positive" for the country.

[Lee Moore]

Mitch had three ways of defeat an Obama SCOTUS nomintion - what he did, letting it be filibustered, or voting it down. He chose the first.

Others on here have been insisting that if he had allowed a vote, Garland would have been confirmed because enough R Senators would have defected. And since the Rs had 54 Senators only 4 defectors would have been enough to get Garland confirmed.

So stipulating that these others are correct - that there would have been at least 4 R defectors, my point is that that is not enough. Garland needed 14 to defeat a filibuster.

So my point is not that he would have been filibustered - if it have gone to an up or down vote, I think it would have been down. The point is simply that even if Mitch had not pulled his "rule" and even if the "stolen seat" folk are correct that say, seven R Senators would have voted to confirm, that's not enough.

Even if Mitch had allowed things to get to the floor, seven R defections is not enough to get Garland to an up or down vote.

There's simply no plausible way that Garland would have got confirmed even if Mitch had not pulled his rule, and even if there had been enough Rs to get Garland over 50.

As for the country, I'm sure Mitch feels that having Gorsuch on the court instead of Garland is very good for the country.

[NToJ]

Filibusters and votes expend political capital. Mitch wanted to avoid that and so, per you, he chose the most politically expedient option. Which happens to be the one in which democracy operates the least. And then he lied about why he did it.

If "Mitch feels that having Gorsuch on the court instead of Garland is very good for the country" he could have made that case to the American public. He could have said "I'm not going to allow a vote on Garland because Garland will be terrible for the country." He could have said "I'm not going to vote for any democratic president's nominee so long as I live, because they would all be bad for the country." But instead he lied and said it was about something we all know it wasn't about. I don't think having people like him around is good for the country. And I happen to side more with this President's choices for the judiciary than the last President's.

[Sarcastr0]

See, the norm is that 'defeat an Obama SCOTUS nomination' SHOULD NOT BE A LEGITIMATE GOAL.

[Lee Moore]

Sarcastro : ‘defeat an Obama SCOTUS nomination’ SHOULD NOT BE A LEGITIMATE GOAL.

Depends who Obama is. If his nominees are predictably the spawn of Satan, then defeating all or any of them, on principle, is a perfectly legitimate goal - to preserve the Rule of Law in the Republic. Same goes for Bushler and Trumpler if they only nominate creatures of the dark.

In theory, I am very confident that if Obama had said :

"Look Mitch, ya ol' coke fiend, we can't have a SCOTUS vacancy for nearly a year, let's try and land on someone we can agree on. There's this Estrada fella who was rather badly treated by my Democrat colleagues for a period of two years in the early part of the Bush administration. How about you drop this business about waiting for next year, and we go for him ?"

then Mitch would have bitten his arm off at the elbow.

But in practice Obama was never gonna do that, because Obama only nominates the spawn of Satan. See Frog and Scorpion. It's his nature. And thusly, mutatis mutandis, with Bushler and Trumpler.

[NToJ]

@Lee Moore,

"But in practice Obama was never gonna do that, because Obama only nominates the spawn of Satan."

Merrick Garland was not the spawn of Satan. He was a moderate. Hatch (in 2010) called him a "consensus nominee" and said that without "question" Garland would be confirmed. More specifically:

"The president told me several times he's going to name a moderate [to fill Scalia's vacancy], but I don't believe him. . . [President Obama] could easily name Merrick Garland, who is a fine man. . . He probably won't do that because this appointment is about the election. So I'm pretty sure he'll name someone [the liberal base] wants."

[iowantwo]

There are more important things for the country than Mitch minimizing political fallout for the political decisions he makes.
The selection of judges is a political process. At is all about politics. Politics is the governor, keeping the engine of governance from overspeeding and self destructing. All the talking heads, all the letters signed by academics, all the pontificating mean nothing. It all boils down to the ballot box.
It is senseless blather to demand politics be removed from political processes.
What it always comes down to, is the will of people. If you don't like the outcome, it is because you refuse to accept the will of the people.

[NToJ]

This is gibberish.

[Brett Bellmore]

They could have discussed it with him, and asked which he preferred: Being ignored, or being voted down. At the very least, if he got a hearing he wouldn't have been accused of being a racist, he just would have had his jurisprudence criticized.

[Leo Marvin]

Brett….IMO the alternative was voting Garland down, and that would have been much worse for him. Imagine that black mark. And the humiliation. No, Senator McConnell took the best option he had.

Color me amused by your concern for and McConnell's virtuous defense of Garland's reputation and feelings.

Give me an effing break.

[Dr. Ed 2]

Brett, it wouldn't just have been Garland being voted down -- he would have been "Borked" as wekll.

Question: Name three SCOTUS nominees actually voted down.
Usually the POTUS pulls the nomination -- which Obama didn't.

[Brett Bellmore]

I don't recall the last time Republicans went in for personal destruction on a nominee. So, no, I don't think the'd have "Borked" him, (Even if you think Bork got a raw deal, which I personally don't.) they'd have just criticized his jurisprudence. And I think judges can cope with that.

As I wrote above, it's not like they'd have accused him of being a rapist.

[Lee Moore]

Question: Name three SCOTUS nominees actually voted down.

Haynsworth, Carswell and Bork.

[Rossami]

So 1969, 1970 and 1987 respectively. And I think you are right that there have been none since (and few before). That seems to confirm Dr Ed's point that, at least for the past half-century, POTUS almost always pulls nominations rather than let them get voted down.

[Kazinski]

Ask Merritt Garland whether he would have preferred the attention of the Kavenaugh treatment, rather than the rather impersonal it's not you it's us refusal to have hearings and a vote.

[Dr. Ed 2]

And: "Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, and schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens."

[Rev. Arthur L. Kirkland]

Perhaps that is what persuaded a number of Republican senators to conclude that Robert Bork was not fit for a Supreme Court position.

Or maybe they just got to know him directly.

[MatthewSlyfield]

There's no need for hearings, just go straight to the floor vote.

If I was in charge of the Senate right now, that's what I would do with anyone Trump nominates to replace RBG. They've already killed the filibuster for judicial nominees. Forget hearings. No debate on the Senate floor either. Full Senate floor vote two business days after Trump delivers the nomination to the Senate. If the Democrats can muster enough votes to block the nomination, so be it.

[Sebastian Cremmington]

The only reason a senator must give to vote against a Supreme Court nominee is “the president didn’t take my advice so I vote no”.

[Rev. Arthur L. Kirkland]

Will you propose the same for the votes on whether to enlarge the Supreme Court, whether to confirm Pres. Biden's spring 2021 nominees, whether to provide statehood to a couple of new states, whether to enlarge the lower federal judiciary, whether to enlarge the House of Representatives (and Electoral College), and whether to change or eliminate the filibuster rule?

Spoiler: What you want won't matter.

[MatthewSlyfield]

The Democrats have to flip the Senate, Win the White House and hold on to the House of Representatives to even have an opportunity at any of that.

The more you think that outcome is guaranteed the less likely it is to happen.

[Roman Moroni]

I don’t see how Arthur’s opinion can possibly affect the outcome, but regardless, are you that confident that all these things won’t happen?

It seems like a very real possibility, and the idea of court packing is pretty scary. I don’t want the end of judicial review.

I’m not saying a deal with Democrats could be reached to prevent this, but it seems like it might be worth it to try.

Although I can’t really see Trump agreeing to any deal that involves a world where he isn’t President. I think he genuinely loses interest in the country’s fate in such a scenario.

[Sebastian Cremmington]

So he should have been treated like Bork, Thomas, and Kavanaugh??

[Krayt]

All these high-falutin' arguments are to cover up the reality.

1. The Tea Party was a revolt against Republicans for going along with the Democrats too much. That has not ended. It explains the delay last time, and the rush this time.

2. Packing the court. At least it's out in the open the SC is a quasi-legislature to be fought over.

3. Granting statehood to Puerto Rico and DC -- again, at least its out in the open it's about additional Democratic senators to benefit the powerful, and not the, ahem, concern about the wonderfulness of full citizenship, as a tear rolls down the eye.

[Brett Bellmore]

I'm actually less concerned about the statehood ploy, than Biden's promise on his campaign website to mass naturalize illegal aliens. That's 10-15 million new citizens at one go, and most of them likely to be loyal Democrats.

That could flip multiple states, and when you combine that with the promise to largely open our borders, we'd rapidly go from a 330 million 50-50 nation to a 400 million one party state.

Biden is promising to put "electing a new people" into overdrive.

[Sarcastr0]

Biden’s promise on his campaign website to mass naturalize illegal aliens

I can't seem to find that provision.

[Krychek_2]

Assuming that to be true, it only partially makes up for your side's advantage with the electoral college and two senators per state. Why should your side have all the unfair advantages?

[epsilon given]

After all the riots and the promise that they'll continue unless their side gets their way (ie, Biden is elected), the character assassinations of judicial nominees, the direct attacks on fundamental norms of due process and presumption of innocence, and the demand that under no circumstances Biden should concede the election, I fail to see why Democrats should be allowed within a mile of the levers of power.

It's an open question whether there are enough Democrats and unlikely voters who agree...

[Dr. Ed 2]

Well, Biden would plunge the country into such a recession that I'm not sure how many aliens we'd get.

[Sarcastr0]

Where do you think we are now?

[Rev. Arthur L. Kirkland]

"That could flip multiple states, and when you combine that with the promise to largely open our borders, we’d rapidly go from a 330 million 50-50 nation to a 400 million one party state."

2021 is going to make America great!

[epsilon given]

Sure, if you think destroying the Constitution and making discrimination legal again are your definitions of "great".

For Americans, however? Not so much.

[Adabsurdum]

Its the same as Justice Scalia's view on precedent. He disagreed that the doctrine of substantive due process was based in the constitution, but would not overturn it as it was enshrined in precedent. Nothing stops the Supreme Court from overruling precedent, just like nothing stops the Senate, except for concerns about consistency and fairness. Its sad to watch Republicans toss that out the window.

The law progressive law professors aren't in charge and never had any authority, McConnell is in charge and has set the precedent. You're acting like Trump, continuing to fault people not in charge for his shortcomings and engaging in outright partisan politics. I remember when this blog wouldn't stoop to this level of meaningless political nitpicking.

[WuzYoungOnceToo]

You think that a law blogger commenting on arguments made by law professors somehow falls outside of the blog's subject matter?

[Intelligent Mr Toad]

Yes, but "We're gonna break the rules, but you have to obey them" is not a realistic attitude. If your opponent repeatedly hits low without being punished in any way, you can't be expected to refrain from hitting him low too.

It's time for the Democrats to take the Mitch McConnell attitude, and evaluate every possible action according to two, and only two criteria: 1. Can we do this without violating the technical letter of the law/Constitution, and 2. Will doing this bring us any advantage over the opponent?

If Dems get the ability to add seats to SCOTUS, my advice to them is think big big big. Add twenty, or thirty new seats, and fill them with activist, left-wing justices whose attitude is "yeah, we're gonna legislate an extreme left-wing agenda from the bench, and if you don't like it, go suck!"

[Rev. Arthur L. Kirkland]

"It’s time for the Democrats to take the Mitch McConnell attitude, and evaluate every possible action according to two, and only two criteria: 1. Can we do this without violating the technical letter of the law/Constitution, and 2. Will doing this bring us any advantage over the opponent?"

That is largely what I have been hearing lately.

For example: I now expect several states to reject that 'Fair Districts' proposal and go straight to Democratic-controlled redistricting while Democrats have the power to make it happen. If you think it was easy for Republicans to craft 2-1 and 3-1 statewide advantages for the U.S. House of Representatives from a minority position, wait until you see what Democrats can do with a majority of voters!

[epsilon given]

You misunderstand the situation. What we see today is the result of Democrats, time and time again, cutting back norms, and Republicans responding in kind when they end up in power.

The real hypocrisy comes from the Democrats being angry at Republicans doing what they've been doing all along.

Indeed, there's a reason why the so-called "McConnell Rule" was first called the "Biden Rule".

[AuBricker]

But were Biden to win this election, and should the GOP hold the Senate while a seat becomes open in 2024, can you doubt this constitutional duty would once more be violated?

I fumed when the GOP refused to allow a vote on Merrick Garland, but I bit my tongue, stupidly believing that should the roles be reversed next election cycle, Republicans would not be so blatantly shameless as to reverse themselves like this.

I foolishly underestimated their dishonestly. Last week, I would have strenuously opposed any "Court-packing" plan by an incoming Biden Administration. Now I believe such a tactic might be essential to preserving a viable two-party democracy.

In all my 40 years as an American voter, I have never -- never -- been so angry with politicians as I am now.

[epsilon given]

You are only fooling yourself if you sincerely believe that the Democrats would have -- or even did in times past -- behave differently.

Indeed, that's what I find so silly about all this debate. The roles are clear: the President appoints, and the Senate confirms or denies. If the Senate doesn't like the President, the President will be denied; if the Senate likes the President, the President will have confirmation.

What's particularly hilarious is how the Democrats were all "the Senate must confirm!" when it was their President making an appointment, but "the Senate must wait!" when the President is a different Party.

The Republicans aren't the only hypocrites here, not by a long shot!

[AuBricker]

The issue here is the self-serving dishonesty of the GOP, and your opining that you think the Democrats would have behaved equally dishonestly had the roles been reversed is not a defense. Not once have you or any of the other defenders of this scam even openly admitted that the GOP are lying, going back a a bold promise made to the American people. Instead, the GOP proves it thinks truth to be just as binding as Trump does his marital vows.

The rank lying and sycophancy that defines the new Republican Party has turned me into an enemy of the GOP. It has become a minority party that uses dishonesty and chicanery in an attempt to give a minority party domination over every branch of government. The GOP is destroying democracy in the pursuit of political power, indifferent to the consequences to our republican values.

[Dr. Ed 2]

And the Senate is held by the other party...

Tell me that Schumer would schedule a vote on Trump's nominee.

[Krychek_2]

Pre Merrick Garland, Schumer probably would have. The Dens gave Reagan an appointment in his last year.

[Dr. Ed 2]

Schumer was only a rep back then...

[jubulent]

Democrats have abandoned the idea that selecting Supreme Court justices is the President's prerogative. This attitude long predates Garland.

The last justice nominated by a Republican president to receive a majority of Senate Democrat votes was Souter (1990).

[Armchair Lawyer]

Really? By "Borking" Bork?

You denied Bork. the GOP denied Garland. It's even.

[Rev. Arthur L. Kirkland]

Boy, are you going to hate the American future for the rest of your life.

[Sarcastr0]

Unlike what Rush Limbaugh might tell you, Bork was not denied in some partisan power play.

[Armchair Lawyer]

History tells us differently. Bork was denied in a partisan power play, led by Ted Kennedy.

[Sarcastr0]

Mere contradiction isn't argument.

Bork got a full hearing and was voted down from both sides of the aisle.

Being mad at Ted Kennedy for saying mean things doesn't change that fact.

[epsilon given]

Yeah, because we all know that Democrats only have the good of the nation at their hearts, and would never do anything to increase power.

And I bet you have a bridge to sell me, too!

[MarkW201]

Bork and Garland is a false equivalence. Voting down a judge after full hearings, based on his very extreme views, is not equivalent to refusing to even have hearings about a well-qualified centrist/moderate liberal.

And Krychek_2 is clearly referring to Kennedy being confirmed.

[epsilon given]

Just because you don't think that Garland doesn't have extreme views, doesn't mean that the Republicans would agree, so I would suggest that you should be wary of calling this a false equivalence.

[Intelligent Mr Toad]

Before Merrick Garland, yes Schumer would have scheduled a vote.

[Kevin Smith]

Really? Because Schumer himself said in 2008 if a vacancy were to come up in Bush's last year in office they would not get a vote (actually he said in July of 2007 that the Senate would not confirm another nominee for Bush)

But even that didn't start the "precedent" it became in 1992 when Biden said the same thing

[MarkW201]

Well, the Democrats held a vote on Anthony Kennedy in 1988. That is the last time they have faced this issue in an election year.

[Squirrelloid]

Hardly a precedent, considering the situation was not unprecedented.

The precedent is clear. When the senate and president are in harmony, election year nominees get confirmed. When the senate and president clash, election year nominees rarely even get votes. (Many had their nominations tabled indefinitely).

In fact, as Tyler learned, this isn't just limited to election year nominees.

[ThomasD]

". The GOP has now established a precedent " of, rather than listening to the (now quite apparently quite varying) whims of a coterie of progressives, instead doing whatever is within their Constitutionally assigned powers to do.

[KHorn]

No, the precedent was no confirmation if the Senate and Whitehouse were held by different parties. Are the Senate and Whitehouse currently held by different parties? No, so the precedent doesn't apply.

[John Bingham]

I’m not sure why people are being so obtuse about this. Dems/progressives/liberals etc. feel (rightly or wrongly) that the Gorsuch nomination was “stolen”. Therefore they are owed a justice now to get even.

[Jimmy the Dane]

Most of liberalism boils down to "getting even" which is the basics of "social justice." Doesn't surprise me that they apply that principle to this argument too.

[Adabsurdum]

Haha right. Because liberals are still yelling "lock him/her up" about former political rivals? Because liberals go to rallies with signs saying "make conservatives cry"? Because Biden makes petty nicknames for his rivals? Wake up about which party is fueled by vengeance.

[Jimmy the Dane]

Clintons belong in jail because they are both criminals, not petty retribution.

Have you ever been on Twitter? Liberals started making nicknames for every conservative because in their mind making fun of conservatives is funny.

"Social justice" is a theory that has its basis in retribution for past, perceived historical wrongs.

[Adabsurdum]

People on Twitter are not political leaders. The examples I pointed out are what the (formerly) most powerful leader in the world has said and encouraged his followers to do.

Also, re: Clintons, it appears after numerous investigations by Trump's personal attorneys, I'm sorry, I mean "Justice department," there has not been any crime discovered to charge them with.

[Sam Gompers]

Yeah, Comey and Strzok are Trump's personal attornies.

Good one.

[Dr. Ed 2]

They are leftists, not liberals, and can you say "crossfire hurricane"?

[WuzYoungOnceToo]

- "Because Biden makes petty nicknames for his rivals?"

Yeah, it's not like he addresses people who challenge him as "fat", "lying dog-faced pony soldier", etc.

[NToJ]

Keep it down, he may peel off some votes.

[Jimmy the Dane]

We all know that what happened in 2016 was partisan political games. And it will happen all over again in 2020 just in reverse.

The same song and dance played out for the last 30 years when the opposing part had the Senate and the White House with judicial filibusters. Then the Dems got rid of that so then we got the "new" version of it.

But please commence with the gnashing of teeth and wringing of hands. Call each other bad names and torture some logic like a Saudi interrogator. Just don't pretend for one moment that either party would ever think about leaving a Supreme Court justice on the table six weeks before a big unknown election.

[SMP0328]

Politicians being hypocrites. It's so surprising, NOT.

As Jimmy said, both parties are being hypocrites. That's how partisans roll: whether something is right or wrong depends on the party affiliation of the people involved.

[arpiniant1]

So cheating is Ok when it is your guys doing the cheating

IT is logically ok to change your mind according to your partisan position, and when it is to your advantage

Bernstein, you are pathetic

[Jimmy the Dane]

Logically the argument has to go something like this:

1. 2016 was a poor application of proper governance. Even though the Republicans were bad actors and horrible for doing what they did, those actions should not have created any kind of "precedent" we should continue to follow. The President and Senate both have a constitutional obligation to fill a Supreme Court seat in a timely manner and that should be the practice DC follows.

2. 2016 set a new precedent and even though it should not have been set because it was now that what we should follow. The Republicans should be bound by the rule they created 4 years ago. Going forward maybe we need to "reset" the rule again, but for now you make your bed you get to lie in it.

3. The rule ought to be whatever favors the political party in power. Insert whatever justification you need here and go with it.

Seeing how the last 12 years have gone I think both sides will opt for #3.

[Squirrelloid]

Tyler tried and mostly failed to fill SCOTUS vacancies for most of his presidency. Many of his nominees never even got votes, but were tabled indefinitely. And while Tyler is an extreme example, election year nominees generally succeed when the senate and president are in harmony, and fail when they clash. That's the historical precedent. The Garland nomination and outcome were neither unprecedented nor even unusual.

[NToJ]

"Many of his nominees never even got votes, but were tabled indefinitely."

Many? John Read was the only one who didn't get a vote, but that's because President Tyler withdrew the nomination when faced with opposition.

John Spencer lost a vote (21-26).
Reuben Walworth lost a vote (20-27).
Edward King lost a vote (18-29).

[Squirrelloid]

You're wrong. The only one of those that was a vote on the nominee was Spencer.

Walworth didn't lose on a 20-27 vote, it was 27-20 to table the nomination indefinitely.

Similarly, Edward King was tabled indefinitely (29-18).

Being tabled indefinitely is not a vote on the nomination, nor even a hearing, it's a vote to end any debate at all with no resolution (having already voted to consider the matter).

Both King and Walworth were renominated later and both tabled indefinitely again.

And there was action taken involving Read - there was a motion to consider the nomination, which failed. That isn't a vote on the nominee, it's not even getting as far as those who were tabled indefinitely - in this case they voted against even taking the matter up in the first place.

[NToJ]

"Being tabled indefinitely is not a vote on the nomination, nor even a hearing, it’s a vote to end any debate at all with no resolution (having already voted to consider the matter)."

Did Merrick Garland's nomination get tabled by a vote of the Senate?

[Squirrelloid]

Senate procedure has changed since Tyler, both in general and specifically in regards to nominations. Of particular relevance here, the Senate no longer seems to allow the procedural vote to consider a question by any member, at least in practice if not by rule.

Regardless, tabling is not a vote on the nominee. That the tools the Senate uses to refuse to act on a nomination have changed as the Senate procedures have changed should not be a surprise. The bottom line is that any nominee which didn't get a vote on their confirmation is in the same boat Garland is, because the Senate refused to act on the nomination, either in favor or against.

(The power the modern majority leader wields in the senate is much greater than in the early 19th century. Another procedural change is that SCOTUS nominees are now first considered by the judiciary committee by senate rules, and that's been true since the late 19th century, but wasn't true during Tyler's presidency).

[Squirrelloid]

Of particular relevance on that last point, as SCOTUS nominees can only be considered by the Senate after a recommendation by the judiciary committee by Senate rules, the Senate could not consider the Garland nomination, because the Judiciary committee never acted on it.

Whereas in Tyler's day, that was not a Senate rule, and no barrier to a nomination being considered (even if they did then table it indefinitely).

[NToJ]

We agree that Walworth and King's nominations were tanked by Senate votes to table the nominations, and that Merrick Garland never received a vote from the Senate. We also agree that the treatment of Garland versus Walworth/King was different.

[Squirrelloid]

Eh, i don't agree that it was significantly different. None of them received an actual vote on their nomination. All of them were denied such a vote by procedural games. The procedural games have simply changed.

[Sigivald]

What are you even talking about? "Cheating"? What rules are you talking about, and what did Prof. Bernstein say about "cheating"?

("It's logically OK to change your mind for partisan advantage" is hard to even parse, especially since, again, the thing you're responding to did not include an accusation of illogic or logical contradiction.

He's mocking them for being nakedly partisan (in presumption) and making an argument they do not actually believe.)

[Stephen Lathrop]

Sigivald — I can answer the part about cheating. The constitutional requirement is the advice and consent of the Senate. That requires a vote of the Senate, not the mere decision of the mere leader of the majority caucus. That is a rule I would happily see applied no matter when the nomination occurred, including now.

When Garland got no consideration and no vote, that was cheating. Still is. And what was stolen by that cheat was not merely a Supreme Court seat. It was a Supreme Court majority.

Republicans should expect commensurate payback. If lawmakers refuse constitutional duties, and trample norms, the only leverage our system affords the lawmakers themselves is payback. Of course, the arguments now on offer are more about trying to mobilize voters to deliver the payback than they are about what the lawmakers themselves might decide to do in an uncertain future.

[Bob from Ohio]

"requires a vote of the Senate,"

That's certainly not in the text.

So, you have a case citation?

Rule of the Senate?

[Lee Moore]

If the Senate is required to vote on nominations, what is this filibuster of which we hear so much ?

[Commenter_XY]

lathrop, you said: The constitutional requirement is the advice and consent of the Senate.

The Senate did in fact give advice to POTUS Obama. They met the constitutional requirement. They declined to take up the nomination. Seems pretty straightforward to me.

[Stephen Lathrop]

Commenter_XY — Your comment is true only for values of "Senate" = Mitch McConell. Because that is never true, neither is your comment.

[Commenter_XY]

lathrop, in the words of the immortal Gary Colemen, "Whatchu be talkin 'bout, Willis?" If the Senate was bound and determined, there is little the McConnell could have done to stop them.

If you want to get pissed that McConnell is an outstanding parliamentarian, fine. But as a factual matter, the Senate did advise the POTUS.

[Stephen Lathrop]

If the Senate was bound and determined, there is little the McConnell could have done to stop them.

Another questionable assertion. For a few Rs to decide to support a moderate D nominee for SCOTUS is hardly a description of a, "bound and determined," Senate. Had it happened, it would have carried the day for Garland. But no one doubts the extreme political price any of them would pay if they crossed McConnell.

Getting that organized may make McConnell an, "outstanding," parliamentarian. Or it may make him a ruthless one. But either way, it is simply mistaken as a matter of fact to insist that the Senate decided, when the question never went farther than McConnell.

[Jason Cavanaugh]

Well said, Stephen.

The Constitution stipulates the Senate - as a whole - provides advice and consent. It does not state that the decision rests entirely on the shoulders of the Senate Majority Leader.

[Lee Moore]

If a majority of Senators do not approve of the behavior of the Senate Majority Leader, they can vote for a different one. The reason the Senate Majority Leader is powerful is that he has the support of a majority in the Senate. When that ceases to be the case, he has no more power than any other rank and file Senator, for then he is no longer Majority Leader.

[Commenter_XY]

Thanks for driving my point home....it went way past them.

[Jason Cavanaugh]

To begin with, the entire Senate doesn't vote on the SML.

Having enough GOP support to have voted for Garland does not imply there was enough support for the GOP Senators to have removed McConnell over it.

What's your next excuse for why McConnell isn't at fault?

[Lee Moore]

Having enough GOP support to have voted for Garland does not imply there was enough support for the GOP Senators to have removed McConnell over it.

Which means that the Senate Majority Leader continued to have the support of the Senate majority in his duties as Majority Leader, which includes vote scheduling.

QED

[WuzYoungOnceToo]

So cheating is Ok when it is your guys doing the cheating

That's an argument one might expect from a flustered nine year-old.

[Bored Lawyer]

OMG! Politicians change their "principles" to suit political expediency! Hold the presses (or whatever the digital-age equivalent of that is), this is BIG NEWS!

Next thing you'll tell me that politicians are not always truthful about what they plan to do if elected. Don't know if I can take all these revelations in one day.

[Bob from Ohio]

Just about everyone merely switched opinions. Unprecedented!

[jubulent]

Bernstein's article is clearly poking fun at the "Constitutional scholars" who argued in 2016 that the President and Senate had an affirmative constitutional obligation to attempt to fill the seat.

If that reasoning were legally correct then the same rationale holds in 2020.

In other words, these "Constitutional scholars" were acting as partisan political operatives, not actual scholars.

[Davy C]

This. And just to be clear, Bored Lawyer, law professors are not "politicians".

[Bored Lawyer]

I think Bernstein's point is that they are.

[Davy C]

They're not politicians, but they certainly can be partisan.

[loki13]

This is ... interesting.

So, to recap. Your guy (and please, for the love of what little credibility you think you might have left, Bernstein, don't pretent McConnell isn't your guy) changes things up 10 months before an election with a new "Let the people decide" rule.

Now, you are quoting people opposed to what he did then ... while ignoring the fact that your guy, who created the problem to begin with, has reversed his position in not just similar circumstances, but so much closer to an election.

Oh, not to mention that you had the unmitigated gall to write that Unprecendented book during Obama's presidency, yet have sat on your hands during this one so that you can continue to curry favor with the usual right-wing ideologues, while muttering to yourself, "At least the embassy was moved. That counts for something, right?"

I'd appeal to your sense of shame, but ... well, you and McConnell must have had that surgically removed. The only bright side is that, at least in comparison to Josh Blackman, you're not Josh Blackman. So, there's that!

[Bored Lawyer]

So, to recap. Your guy (and please, for the love of what little credibility you think you might have left, Bernstein, don’t pretent McConnell isn’t your guy) changes things up 10 months before an election with a new “Let the people decide” rule.

If you are going to accuse someone of hypocrisy, at least have the decency of quoting his exact words, rather than your paraphrase of them.

What McConnell said at the time is that when you are close to an election, and the party that controls the Senate is different from the President's, you don't get a confirmation until after the election. He made very clear at the time that when the Senate and White House are in the hands of the same party, then a confirmation could happen.

That may be a convoluted and self-serving formulation, but it is what he said at the time. And he is acting perfectly consistently with his own rule.

[loki13]

The quislings who are abetting the destruction of both the rule of law, and of basic norms, such as you ... well, you end up with exactly what you deserve.

The issue isn't the people that lie to you, BL. It's people like you, who not only accept the flood of lies, but work up justifications for why you have been lied to. Just like any victim of a con, you are the last to get it; but unlike most regular con victims, it is not just you that is getting fleeced; rather, you aid and abet the fleecing of everyone else while casting about blaming others.

[Jerry B.]

You post a lot in the Washington Post's comments section under another name, don't you? You've got the Democratic hate down to a tee.

[Bored Lawyer]

Translation: I cannot respond to the substance of your argument, so I am going to attack you personally. Got it.

[WuzYoungOnceToo]

You're arguing with someone who once declared that Richard Nixon was the only U.S. president to have ever been impeached.

[Bored Lawyer]

I just want him to know that I have his number.

[Commenter_XY]

It hurts, doesn't it loki? I know, I see my uber-lib friends behaving much the same way as you are. It must sting that POTUS Trump will get a third SCOTUS justice, has filled 53 circuit court vacancies, and north of 150 district court judges. I won't bother going into the article I or article IV filled vacancies, but there are many that were filled as well.

You know, if POTUS Trump does beat Slow Mo Joe (BTW, he will), think of how many more district court and circuit court judges get appointed. And confirmed. Hell loki, Breyer at age 82 might decide to hang up the robe...or get promoted to a higher heavenly court.

Yeah, I can see it bugs you. They'll be here for decades - quite literally.

[loki13]

That's a great comment, Commenter_XY. Because it really gets to the heart of things. Yes, it does rankle. But not for the reasons that you think it does. I remember a joking comment way back when to Prof. Kerr about how I thought it would be good (and funny!) for the GOP to nominate Trump; if nothing else, it would allow for the GOP to undergo some much-needed self examination.

Instead, that didn't happen. We have comments like yours; filled with nothing but pure enmity. The GOP is stuck in a weird place; the main drivers are "Does it piss of the other side," and "How do we cling to power knowing that we have minority support in this country?" The combination of those two ... it doesn't end well. More importantly, you're radicalizing the other side. You can only take so many "Grandpa forwarded me some BS QAnon thing again" before it starts to grate on you.

So yeah, I am pissed as hell. Which given that I like fiscally conservative and socially moderate policies, and I prefer not having to think of government much at all instead of having this administrations corruption thrust in my face like one of Trump's affairs (or rape victims) every damn day? Yeah, you're right.

But that's the rub, isn't it? It's all fun and games when one side is all, "HA HA STUPID LIBTARDS WE PWN U!" and pretends the other side is just as bad; but this doesn't end well.

I don't like what the Trumpian GOP has done to this country. I am, quite honestly, aghast that we are still in the middle of a raging pandemic and that the only motivating quality for people like you isn't what's good for the country, but how much PWNAGE you can have.

So good for you! You think it's both sides. You think it's someone else's fault. Nope. America is collapsing around you, and you don't care so long as "the other side" is unhappy.

[Commenter_XY]

Yeah, I was right. Thought so. 🙂

[NToJ]

You're pathetic.

[Commenter_XY]

The arrow struck home....on more than one. 🙂

[Matt Buckalew]

Lol two bird brains with one stone XY.

[Commenter_XY]

One arrow...two pierced hearts. One weeps.

[Leo Marvin]

Yeah, you really mastered the troll two-step:

1. Be a dick.
2. Declare victory when your opponent points out you're being a dick.

Congrats. You're a champ.

[Rev. Arthur L. Kirkland]

I only regret that I won't get to shove those four new justices down your throat personally, Commenter_XY.

But you will swallow. You will comply. And then, as usual, you'll whimper about it.

See you next year, clinger.

[Commenter_XY]

Three more judges will be confirmed this week. And more next week. And some more a week after that. By years end, it will be past 180 for district courts, and of course...one more SCOTUS justice. 🙂

[Adabsurdum]

Well said. Unfortunately there are a lot of people out there (probably most of the minority that voted for Trump) who appear incapable of the type of educated self reflection required to appreciate what you said.

[WuzYoungOnceToo]

the type of educated self reflection required to appreciate what you said

"I don't care who you are, that's funny right there."

[Dr. Ed 2]

The Jacksonian Democrats felt the same way about FDR -- and there were entire counties that went from D to R because of him.

It IS the "Trumpian GOP" now -- get used to it. Trump is the new Andrew Jackson, at odds with both Adams & Jefferson.

[Bob from Ohio]

"what’s good for the country" is having Amy B. on the court.

But please keep foaming at the mouth, its an enjoyable side benefit.

[Jason Cavanaugh]

That's about the most precise summation of Trumpers that I've seen put to paper, Loki.

And you're right - it's goddamn disgusting that they don't care about America as a whole as long as they get to divide the nation and spread fear and hatred.

[epsilon given]

I expected some much-needed self-reflection from the Democratic Party after 2016 -- while the Democrats proved they could appeal to the urban centers of the country, it was rural America who rejected them, after all, and did so by a slim margin.

Had they done that, I'd expect that the Democrat lead for President would be much bigger than it is today. As it is, I'm going to be a tad surprised if Biden wins the Presidency.

[David Nieporent]

You know, if POTUS Trump does beat Slow Mo Joe (BTW, he will)

Um, you don't believe that, he doesn't believe it, and McConnell doesn't believe that. If they did, they wouldn't be desperately trying to rush a confirmation through.

[Dr. Ed 2]

Other way around, David -- they fear losing BECAUSE Trump didn't fill this seat. Because they didn't fight.

They need to worry about losing people like me who will say "we got you the Presidency, we got you the Senate, and you *still* couldn't act -- so to h*ll with you...."

[Leo Marvin]

Ed, Trump couldn't lose you if he stashed a dead hooker in your trunk, ran you over with your own car, and sued you for defamation when you asked him to pay for the gas he used driving to the desert and back to bury the hooker.

[Bored Lawyer]

First of all, it is an uncertainty. Even if you think Trump is likely to win (as I do), that does not mean it is a sure thing.

And second, this is good politics. Trump is making good on his promise to remake the judiciary, incl. SCOTUS. This fires up the base. There are others in the wings -- Beyer comes to mind, and even Thomas is 72 -- as well as many lower court federal judges.

[NToJ]

"First of all, it is an uncertainty. Even if you think Trump is likely to win (as I do), that does not mean it is a sure thing."

If you think the President's chances of reelection are greater than 50%, you should take advantage of that through betting websites. The following will (right now) give you favorable odds:

Betfair
Betsson
Bovada
Bwin
Smarkets
SpreadEx
Vbet

SpreadEx in particular will pay out well.

[donojack]

I don't call 6/5 odds particularly good. Now 50/1 for Harris looks very good. If Joe pulls out after the first or second debate then does the Democratic party elevate Harris to no.1 or do they choose someone else? If it would definitely be Harris then I might take that bet. Pence at 200/1 is also a possibility. If Trump croaks it's a sure thing that Pence gets the nod.

[NToJ]

6/5 is wonderful if you think the President's chances of winning are greater than 50%.

[M L]

And if you like gambling your money.

[NToJ]

All investments are gambles.

[M L]

But especially one with a 40% chance of a 100% loss.

[Sarcastr0]

Due to largely their own crazy base, Republicans were confronted in 2016 with having to choose between radicalism or failure. They have now presented Democrats with the same choice.

[Dr. Ed 2]

As long as you don't consider gambling to be a sin.

[Rev. Arthur L. Kirkland]

Odds do not reflect probability . . . they reflect the views of those who wager. (Buy Super Bookie, by my friend Art Manteris, for the details.)

At 538, which does aim to identify probability, Trump is at 22 percent to win. The most likely result, by 538's analysis, is that Biden collects roughly 410 electoral votes, the Democrats take the Senate, and the Democrats hold the House.

See you then, clingers.

[zztop8970]

That would be the same 538 that has Trump at less than 29% in 2016, yes?
By all means, keep using that as a guide for betting your money.

[Josh R]

Fivethrityeight had Trump at 29%, which was the highest value of any poll aggregator, and thus they are likely a very good model. They predict the most likely number of ECs for Biden is 333 (not 410), and the Democrats have a 60% chance of taking the Senate (it's a close call). They haven't published their House prediction yet, but I believe Nate Silver (editor in chief and model creator) hinted the Democrats will be a bigger favorite in the House than either in the Senate or Presidency. Also, I suspect these predictions are not independent of each other and hope Silver will share what his model says about the Democrats winning all three.

[Cal Cetín]

A legal question - can an American citizen bet on the outcome of an American election?

[Rev. Arthur L. Kirkland]

Yes.

[WuzYoungOnceToo]

Um, you don’t believe that, he doesn’t believe it, and McConnell doesn’t believe that. If they did, they wouldn’t be desperately trying to rush a confirmation through.

The belief that something is more likely than not to happen does not imply certainty that it will happen.

[David Nieporent]

Of course thinking that something is probable does not equal thinking it certain. But nobody can believe that Trump is going to win in a landslide without being certain that he's going to win at all.

[WuzYoungOnceToo]

I don't know what the hell that has to do with your patently ridiculous conclusion that being prudent by ensuring a SCOTUS seat is filled by Trump during his current term must mean that those doing it think he won't have a second one.

[M L]

Failing to advance a confirmation would significantly decrease chances of re-election.

[donojack]

Since 1975 the average time from nomination to confirmation is 67 days. If Trump nominates someone on Wednesday let's say then that leaves 120 days until a new President is inaugurated. So it doesn't need to be rushed through at all. If they do it before the election it will be faster than average but not as fast as Ginsburg's confirmation which took only 42 days.

[Bob from Ohio]

"McConnell doesn’t believe"

Probably not. Hedging a bet is prudent politics though.

You take the victories in front of you, the future will take care of its self.

[Rev. Arthur L. Kirkland]

"the future will take care of its self"

It always has, during my lifetime. The clingers lose in the culture war and cry about it furiously.

[epsilon given]

It's fun to remember that Mitch McConnell held off on voting for Garland when it was pretty certain Hillary was going to win.

Bigots like you can hope to regain power -- and perhaps you will -- but while it's not certain, it's also a good idea to play hardball, push for the best advantage, and prepare for the worst.

But for all this talk of "clingers" losing the culture war, it's not "clingers" that are burning minority-owned cities in minority neighborhoods ruled by the natural systemic racism you'd expect from Democrats being in power for decades.

[Commenter_XY]

David....let's talk November 4th. Or maybe January 20th. Whatever. It will all get sorted out eventually.

I only see one candidate out there hustling for votes. 😉

[Bored Lawyer]

Why there are plenty of votes in Biden's basement in Delaware!

[Dr. Ed 2]

Well, if you stuff enough ballot boxes, you don't need real ballots.

[Davy C]

>I won’t bother going into the article I or article IV filled vacancies

Article IV vacancies? What are those, territorial governorships? And what the heck is an Article I vacancy?

[Commenter_XY]

Great question...Article I courts are specialty courts. My understanding is they normally have a fixed term, like 10 or 15 years. List of specialty courts below.

Federal Claims court
Tax court
Appeals for Veterans claims
Military commission review
Appeals for Armed Forces

[Davy C]

OK, I see now. Article I, Section 8 says Congress has the power "To constitute Tribunals inferior to the Supreme Court;" and that's where these come from. Thanks, I learned something today.

[Kevin Smith]

Except the rules that BL refers to are the same ones that Democrats like Chuck Schumer play by. Everyone seems to have conveniently forgotten Schumer's unsolicited declaration in 2008 that Bush would not get to appoint another justice if a vacancy opened up that year. (ditto for then-Senator Biden in 1992)

Pre-Garland you could have argued that he intended that rule to apply universally, regardless of who controlled the Senate/White House, but obviously 2016 dispelled any illusion of non-partisanship when he demanded his party to get to appoint another justice.

Democrats are just mad that all the guns they spent so much time loading are now having their triggers pulled by the Republicans

[NToJ]

"If you are going to accuse someone of hypocrisy, at least have the decency of quoting his exact words, rather than your paraphrase of them."

I note that you didn't quote his exact words, either. Here is what McConnell said in 2016:

“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.”

A week later he said:

“Rarely does a Supreme Court vacancy occur in the final year of a presidential term … Given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in.”

[MarkW201]

He didn't say anything at the time about "different party controlling the Senate." That is something he started talking about this year.

[Lee Moore]

If one pays attention to the text - yeah, old fashioned dead Constitution stuff - it emerges that the President does indeed have an explicit constitutional duty to nominate - "shall nominate".

But there are no shalls for the Senate, which can do what it likes.

[Lee Moore]

The other revealing bit of text is that no distinction is made between the various animals that the President nominates, when it comes to the Senate's role in advising and consenting. The role is the same for all of :

"ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States"

Consequently, if it really were the case (which of course it isn't) that the Senate has a constitutional duty to take up and consider the President's nominations to the Supreme Court it must have an equal duty as regards all of the President's nominations, from ambassadors to Federal Dog Catcher-in-Chief.

Since the Senate has routinely ignored all sorts of nominations since the founding, and regularly allows nominations to lapse at the end of a session, we may conclude that if the Senate does have any affirmative duty (which it hasn't) in the advising and consenting business, it is very much a repeat offender.

[Dr. Ed 2]

Very good point.

[Bored Lawyer]

Federal Dog Catcher-in-Chief.

Comes with a gold-plated dog net.

[CityGuySailing]

Who was it that said "Elections have consequences"?

[OtisAH]

Vice President Dick Cheney.

[Jimmy the Dane]

Some guy from Kenya, I think...

[Matt Buckalew]

In fairness he just lied about being from Kenya to get his silly book about why dad no love me published.

[epsilon given]

Whoever said it, I'm sure they are 100% happy that the Senate was able to block Obama's appointee and that the Senate is set to approve Trump's nominee.

Because that's how elections work, right? If you want to run things, you need to win elections, after all! 😉

[TwelveInchPianist]

Well, sure. Everybody's going to try to get their guys on the court and keep the other guys' guys off.

And everybody's going to come up with some bullshit to justify it.

I guess it's lucky for the GOP that their bullshit was framed in terms of principle, and the other side's bullshit was framed in terms of a constitutional obligation.

Still, hypocrisy on both sides.

[epsilon given]

The only justification the two sides need -- and it's justification I agree with, even when I disagree with the outcome -- is that politicians do their best to satisfy the desires of their constituents.

I wanted my Senators to block Garland from getting onto the Supreme Court. I want my Senators to appoint Trump's nominees. If they act accordingly, then I will be pleased.

[David Bernstein]

Just for the record, the point here is that the original argument about constitutional duty was absurd and obviously political, and, yes, I am criticizing my academic colleagues for (a) making it; and (b) to the extent they would backtrack today, which I am 99% sure all or almost all of them would, for that too.

[loki13]

Just for the record, I think the main offense that would be had is for other people to think that you refer to them as colleagues.

Just FYI.

[David Bernstein]

Didn't you promise like two years ago that you were no longer going to read or respond to what I wrote? Please go back to that.

[loki13]

"Didn’t you promise like two years ago that you were no longer going to read or respond to what I wrote? Please go back to that."

Was that before or after you were threatening to Dox me, Bernstein?

It's a real shame you said the wrong name.

Given this blog, and Prof. Adler, you should know better. BUT YOU DON'T, DO YOU?

[TwelveInchPianist]

"It’s a real shame you said the wrong name."

TMI, dude. Whatever the personal stuff is, maybe keep it offline?

[Leo Marvin]

I don't follow. This is the first I'm hearing of any threatened doxing, and I still don't know what if anything happened. But if DB did threaten to dox a commenter, then absent some pretty extreme provocations I have trouble associating with loki, I would find it despicable, and I think loki would be fully justified publicizing it. Of course DB would also be within his rights to disclose any such extreme provocation if it exists. Which part of any of that bothers you?

[Rev. Arthur L. Kirkland]

Your faith in the Conspirators is going to make you sad, and wrong, Mr. Marvin.

[Leo Marvin]

I give everyone the benefit of the doubt until they prove undeserving, which by my lights doesn't mean simply political disagreement. .

[Rev. Arthur L. Kirkland]

Are hypocritical, partisan censorship and doxing "simply political disagreement?"

I do not fault you for being optimistic and generous. I expect you to be disappointed.

[TwelveInchPianist]

I don't know nothing about no doxing, I just don't want to know any more about who called out the wrong name, and under what circumstances.

[Leo Marvin]

Sorry, my bad. Self-"woosh."

[Life of Brian]

But if DB did threaten to dox a commenter

Comments here are public and easy to link. I guess we'll see.

[Sigivald]

Hey, Loki.

Do you know that Justice Ginsburg was famously close friends with Justice Scalia?

Rather than being deeply offended at being on the same bench as him for years, their families spent holidays together.

Consider that maybe Prof. Bernstein's colleagues might have more in common with Justice Ginsburg than with you.

You sound very angry and upset about people daring to not be on your partisan side.

[loki13]

"Do you know that Justice Ginsburg was famously close friends with Justice Scalia?"

Of course I knew that. What a moron.

[Dr. Ed 2]

And what does that say about her -- and you?

[NToJ]

What fresh nonsense is this? What is "that"? Are you referring to their friendship, or the fact that loki knew about it (since it's a widely reported fact)? If the former, why would it say anything about loki? If the latter, why would it say anything about her?

[jubulent]

Someone should make a project of reaching out to each of the original signatories of the letter and see if they still support their 2016 position and why.

I expect a lot of "orange man bad" responses, if you get any at all.

[Sarcastr0]

What's happening here is the GOP gave excuses last time that no one believed and now they're also trying to do the same thing. So far I mostly see arguments from the left legal people about the 2016 actions and saying this fight is actually about that. Dunno if I believe it, but it does avoid the argument you're making.

Whereas there is naked and clear inconsistency is in the GOP's words *and actions* in 2016 and today.

The real principle seems clear to all at least around here, and has been consistent both times - when the GOP has the votes and it's not unconstitutional they will do it, and rationalize however they need to to blunt political impact. Right up to and including if Hillary won considering keeping the seat open for 4 years.

And when it comes to norms stuff like the Garland consideration, it's clear we cannot stop you and the political price is not high.

But then don't blame Dems for doing stuff they have the vote for that's not unconstitutional either. Because if the price isn't high for you it's not crazy to see if it won't be high for them.

If that kind of cold transactional logic makes you uncomfortable - and it should - well, we learned it from watching you.

[Commenter_XY]

Sarcastr0, this is not so complicated. The constitution makes this very easy. There are only two rules. The POTUS nominates, and then the Senate confirms or rejects. Very simple.

What happens in between those two rules is politics.

Given that the 2020 election is going to be contested and litigated (hell, it is already being litigated), I want to see a full SCOTUS complement in place before the election to rule on the legal questions that will come before it. And there will be questions to come before SCOTUS this election.

[Josh R]

I propose that Trump nominate, and the Senate quickly confirm, Sandra Day O'Connor to establish a full SCOTUS compliment. She then will resign after January 20, 2021.

[Dr. Ed 2]

Sandra Day was a mistake not unlike Earl Warren.
Eight justices are better...

[Sarcastr0]

Senate didn't confirm or reject in 2016.

This is why you need norms. Things flexible enough to handle human perfidy.

What if a Senate of the opposite party decides it will never allow the President to nominate, I'd argue that's by the book but also bad and they shouldn't do that.

A SCOTUS with a full complement including a just rammed through Trump appointee that holds that Trump wins the election...well, that may not be the healthy move for the Republic you think it is.

[Commenter_XY]

No Sarcastr0, we need defined rules and fortunately we have them.

[Sarcastr0]

Under that weak rubric, court packing here we come.

[Dr. Ed 2]

Remember that FDR wasn't that blunt.

[bernard11]

So expanding the size of the court is perfectly fine with you, because it's clearly within the rules?

[Bob from Ohio]

It is with me.

Expand it, we'll expand it some more one day.

435 is a good number of justices. Might as will have the form of a legislature.

[Commenter_XY]

bernard11...Go for it. I personally don't think there will be very much support for that. But hey, if you really think that riding that horse will bring you to victory, by all means....ride it.

[Sarcastr0]

I really don't like that kind of transactional approach to politics.

Why do you think we managed to restrain ourselves from all this nonsense of court packing and abuse of advise and consent and whatnot all these 200+ years?

It couldn't have just been that no one thought they could get away with it.

[Commenter_XY]

I don't particularly like it either, Sarcastr0. Nor do I think many Americans take kindly to being overtly threatened, which Team D has done. Do what we want or we burn it all down? But hey, if that is what they want to do, very well, let them try.

The mistake here is having SCOTUS decide social and political questions, in addition to constitutional questions. SCOTUS acts as a legislature of nine on social and political questions. To me, that is what raised the stakes. I hope we can get away from that.

[Sarcastr0]

I don't think the Dems are taking hostages here, I think it's the only rational response to what the GOP has done with SCOTUS seats. You cannot meet radicalism with statesmanship, or you will become irrelevant.

The Court has always decided social and political questions. Marbury was a political question. What the contours are of Free Speech is a political question.

Right wing rhetoric about against the Court as an institution has made the right no longer think the Court is legitimate. Now right-wing tactics regarding nominations has made the left do so. This is destabilizing and unnecessary, but here we are. It'll take some work to get us back to normal.

[epsilon given]

The Left has made it clear that the only Court that's "legitimate" is one that's under control of Leftist judges. They are *only* angry at the Republicans today because they are *finally* in a position to appoint Justices they *hope* they will like.

The fact is, the Democrats have been pushing to radicalize the courts, and this response from Republicans is the result of dealing with Democratic radicalism for decades.

Republicans have *always* responded to radicalism with statesmanship. They have *always* lost as a result. Trump is the end result of Republicans deciding to just screw it, and try a bit of radicalism to counter radicalism for once.

[ThomasD]

"Senate didn’t confirm or reject in 2016."

Pretty clear the Senate rejected Garland, they just didn't hold a formal vote.

[Sarcastr0]

Because the formal vote would have failed, they had to go for the end-run.

That's telling, no?

[ThomasD]

Plenary power is what it is.

[Sarcastr0]

That's a change of subject from 'did the Senate reject Garland' to 'was the Senate legally required to formally reject Garland.'

Telling, no?

[Stephen Lathrop]

ThomasD — That is a contradiction in terms. The leader of the majority caucus rejected Garland, not the Senate. The vote, which is the only way the Senate can fulfill its duty, one way or the other, is not some mere formality. It is the essence of the duty.

[ThomasD]

The majority caucus chose a leader. That is what Senate rules require. That majority leader leads. Making all manner of decisions without further input from the caucus.

It's not a contradiction, but given you think it one, I am not sure what could be said to make you understand.

[Commenter_XY]

No ThomasD, the Senate did not reject Judge Garland. They declined to take up the matter, a very different thing. I don't think there was a graceful way to handle that situation. By not forcing Judge Garland through a nightmarish judicial confirmation process, they spared him (and us) a total spectacle.

[Armchair Lawyer]

In addition, not taking up the vote has occurred with many circuit court judges in the past, spearheaded by the Democrats.

https://www.heritage.org/testimony/diminished-judiciary-causes-and-effects-the-sustained-high-vacancy-rates-the-federal

[ThomasD]

I'm sorry you do not understand that failure to accept is rejection. I have the advantage of not having been to law school, so maybe that explains your confusion.

[Commenter_XY]

ThomasD....IMO, 'rejection' in this circumstance (SCOTUS nomination) requires an action, an actual vote on the nominee. That never happened.

[ThomasD]

I cannot argue with your opinion, I can however note that there is nothing in the Constitution or even existing Senate rules supporting, much less requiring it.

My opinion is that, had the authors and ratifiers of the Constitution wanted it your way then the verbiage would have been substantially different. It would have specified Senate action upon nomination and no doubt included a time frame, much as there is a time frame specified for the pocket veto.

However, if you wish your opinion to become the practice then all you must do is convince the Senate to make it rule.

[Lee Moore]

IMO, ‘rejection’ in this circumstance (SCOTUS nomination) requires an action

Yes and no, but mostly no. A nomination remains live until

(a) the Senate votes against,
(b) the President withdraws it, or
(c) the Senate session ends.

In the latter case, the nomination is returned to the President with no Senate action, and if the President wants to have another go with the same nominee, he has to do a fresh nomination in the next session.

So it isn't necessary for the Senate to do some act to reject you, sitting quietly in the bar until the end of the session works just as well. And this is what in fact happened to Garland.

[Rev. Arthur L. Kirkland]

"Given that the 2020 election is going to be contested and litigated (hell, it is already being litigated), I want to see a full SCOTUS complement in place before the election to rule on the legal questions that will come before it. And there will be questions to come before SCOTUS this election."

And then you'll get to whimper and rant and mutter and sputter about all of the progress that will be effected -- in fastidious compliance with the rules and congruent with ample precedent -- in 2021. Court enlargement for starters. But only for starters.

[epsilon given]

And I'm sure you'll just be tickled pink if it turns out that, if Republicans are in a position to do so (and they may very well be -- after all, weirder things have happened), they decide to take all this "we must expand the court" rhetoric seriously, and take it upon themselves to do so.

[Don Nico]

S0,
That was a lot of words, but what you said is correct. It is naked power politics.
No surprise there.

[Sarcastr0]

Yeah, I woke up too early this morning. Sleep dep makes me less succinct.

[Sarcastr0]

NToJ does a good shorter Sarcastr0:

https://reason.com/2020/09/21/the-president-and-senates-duties-when-a-supreme-court-vacancy-arises-during-an-election-year/#comment-8472540

[ThePublius]

"Right up to and including if Hillary won considering keeping the seat open for 4 years." But this didn't happen. Not fair to malign a party for something you speculate they might have done.

Politics ain’t beanbag. The Senate declining to have a hearing for Garland is just the party in power exercising that power. I have no illusion that the Democratic party wouldn't have done the same.

Now, having a hearing for the next nominee before the election is - just the party in power exercising that power. I have no illusion that the Democratic party wouldn't do the same.

[Sarcastr0]

We've managed not to do this kinda stuff for quite a while, so I don't think it's inevitable or wise.

But fine, this is all about what you can get away with. Then don't complain when the Dems do the same naked stuff.

Personally, I don't like it when either side does it but if this is the lay of the land, it'd be silly to deny it.

Like when the Dems reinstated blue slips when they retook the Senate only for the GOP to once again end the practice when the Senate returned to their hands. A noble move, and they got rolled for acting like statesmen in a might makes right world.

[Bob from Ohio]

Blue slips still exist for district court judges.

They shouldn't though, let the majority be the majority.

[Sarcastr0]

It's about letting people who have the state-level expertise weigh in.

[Bob from Ohio]

So?

It stops nominees from receiving votes. I thought the norm was to give everyone a vote up or down.

[Stephen Lathrop]

No, the norm has become an unrestrained lunge for power, and the Constitution be damned. But doing it that way does some harm.

For instance, the Garland nomination. Obama seems to have tapped a somewhat elderly moderate because he wanted the political advantage he could get from making Republicans reject in public an unambiguous moderate. McConnell didn't want to risk that political embarrassment, so wouldn't let Garland have a vote.

Anyone who doesn't want extremist nominations ought to recognize the damage to moderation McConnell inflicted when he did that. Think it over. Isn't embarrassing your political opponents by challenging them to reject qualified moderates exactly the kind of political warfare which would best serve the nation?

[Sarcastr0]

That's been the norm for SCOTUS votes.

I think you'll find that at least in the modern era that's not been the norm for Appellate Judges.

[Lee Moore]

It’s about letting people who have the state-level expertise weigh in.

Haha ! Very good.

Actually it's a deal to make sure that the corruption in the Senator's home state is not interfered with inappropriately by an interloping Federal Judge, who has not partaken of the local fruit, and might therefore be dangerously out of control.

[epsilon given]

Sarcrastr0, the Democratic Party has been doing this stuff for years. My only complaint is that I don't like the result -- so it's important for me to win elections.

Well, here we are. I have won a few elections. And now the Democrats have the audacity to complain about the power that winning elections gives their opponents.

Maybe they should go and win a few elections for themselves, so they can get back to doing things they hate Republicans doing.

[donojack]

There is a big difference between using electoral advantage for normal things (at least normal in these contentious times) like blocking your guy and elevating our guy, and using electoral advantage to rig a system to gain and hold power in perpetuity. All this posturing about last straws is being used to justify radical system changes that most of you claimed to oppose the day before yesterday.

[Sarcastr0]

Normal things seems very much in the eye of the beholder.

When asked for some kind of codifiable norm, people tend to end up back on might makes right.

[jubulent]

We all know you're going to argue against "norms" if the Democrats take the Senate and Presidency.

Stop pretending otherwise.

[grb]

I suspect the real "big difference" to donojack is the other side will be using raw power to their political advantage for a change. By electoral advantage & constitutional means, they'll "elevate" their guys - and won't need to rig the system with a whole new standard for each open SCOTUS seat

But if donojack is really concerned about "radical system changes", he has a straightforward course of action : Get on the phone with a GOP lawmaker and demand they stop this escalation. If he's unwilling to complain to the GOP, he damn sure better not complain when the Democrats respond in kind.

[Davy C]

Sure, McConnel is being nakedly partisan. But it seems that those law professors are too. This is just showing that "law professor" does not equal "objective observer" and they don't always argue in good faith. (Presumably we already knew this about politicians.)

>If that kind of cold transactional logic makes you uncomfortable – and it should – well, we learned it from watching you.

I believe Reid was the first to eliminate filibusters from nominations, using the tactic of "we'll have a Senator make a point of order that the filibuster isn't a rule, which triggers a majority vote on whether or not the rule exists, and then we're just going to lie about it".

[andrew]

And here's what you had to say in 2016:

Opinion | Re: Merrick Garland, it’s a bit late for the Obama administration and its supporters to appeal to constitutional norms requiring Senate consideration

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/03/16/re-merrick-garland-its-a-bit-late-for-the-obama-administration-and-its-supporters-to-appeal-to-constitutional-norms-requiring-senate-consideration/

At that time, you were very careful to describe them as norms, not duties.

[David Bernstein]

A lot of people were talking about norms; they had a reasonable, but not unassailable point. Some law professors tried to use their authority as *experts* to insist that despite an utter lack of textual support, the Senate had a *duty* to vote on the nomination. That was silly, and obviously partisan. If they had only said that "this is the norm, and it shouldn't be undermined, that would be different."

[Josh R]

The current argument is McConnell is violating the norm he created.

[ThomasD]

The norm that the party in control of the Senate gets to choose what to do?

[Bob from Ohio]

"McConnell is violating the norm he created"

It is a bad argument. He said the "norm" of a vote existed only when the Senate and the Presidency were from the same party.

[Sarcastr0]

No, that's not what he said. Or if he did he said it well later than his original thesis.

It's not a norm; no on believed it then, even. But sometimes revealing a lie that everyone knows is a lie puts things in relief. In this case I think it does something like that for liberals, and conservatives see that and seem...concerned.

[Josh R]

At best for you, he vaguely hinted at your claim in passing only once or twice. Throughout the vast majority of the kerfuffle, he made no such distinction. Senators Graham and Grassley understood what I claim to be McConnell's norm.

[MarkW201]

That is not what he said in 2016. That is what he is saying now to spin his hypocrisy away.

[Commenter_XY]

Professor Bernstein....Glad to see you here. L'Shanah Tovah. Have not seen anything lately at TOI (I hope to).

Why get hung up on norms? To me, the written rules are crystal clear. 🙂

[grb]

Interesting read. The Bernstein of '16 says this : "It’s not clear, if I were a Republican senator, why I’d use this particular opportunity to call for a cease-fire, especially one that the other side may not honor in the future."

Well maybe he should think long & hard about a cease-fire this time, as should Republican senators. After Garland, Democrats see a pre-election nomination as an escalation and they will retaliate. They will have overwhelming support demanding a response. If a person is unwilling to accept the damage from warfare, then a ceasefire becomes prudent.

In another thread Blackman is peddling the fraud that "everything will happen anyway" - because he likes telling his chosen audience exactly what they want to hear. In this case they want to believe their actions & decisions have no consequences, but they will. The choice lies with Trump, the GOP, and the Right.

[librarian]

The way I see it, the president should be able to make his nomination before the election. Constitutionally, they can go ahead and make a nomination to prove they where hypocrites in 2016, and then wait to confirm until the lame duck session to prove they are still hypocrites today.

[James Pollock]

Mitch is afraid that if he doesn't deliver the supreme Court seat, he won't be calling any shots in 2021. Ideally, he won't be, because he'll be in an unemployment line wishing he'd approved of increased benefits.

[Dan Schiavetta]

There's no deadline for the President to make a nomination. Likewise, as David pointed out in 2016, the Senate has no duty to act on it.

But if everyone named in the Constitution did only what that document requires, and nothing further, the federal government could not function. The Framers assumed that these folks would be responsible adults -- that certain norms would be adhered to. They did not anticipate this generation of Republicans.

[Sigivald]

Funny how it's always The Other Side wrecking norms, isn't it?

See, when Our Guys do that, it's "necessary for the greater good" and "part of being flexible".

[Dan Schiavetta]

A Republican Senate has already been successful in hindering the operation of government by not acting on a Democratic President's nominees.

See https://www.cnn.com/ALLPOLITICS/1998/01/03/judicial.vacancies/

Also see the gaming of the recess appointments clause, which disabled the NLRB. Perfectly legitimate under the literal wording of the Constitution. (NLRB v. Canning)

If there are examples on the other side I'd like you to cite them.

[Davy C]

The gaming of the recess appointments clause was done by the President in that case. This isn't 1790; members of the Senate don't take weeks to get from their home state to the Capitol. He was attempting to make recess appointments, not because the Senate was genuinely unavailable, but because they weren't going to approve the appointments.

[Adabsurdum]

When did the Democrats set the precedent in question? Similarly, its not like we hold supreme court dissents to be binding; the majority sets the precedent. Same with judicial estoppel, it's not held against the losing party. The liberal commentators didn't have power to do anything in 2016.

[James Pollock]

"See, when Our Guys do that, it’s “necessary for the greater good” and “part of being flexible”."

Thing is, it's your guys who've been out to break the government since (at least) Reagan. Reagan couldn't do it, because he wanted to spend money on defense, but Trump has no use for the military, so he can go ahead and do permanent harm.

[Don Nico]

"The Framers assumed that these folks would be responsible adults"
You have claimed that (with no evidence) before. Much more likely is that the Framers understood that folks would generally behave as scoundrels.

[James Pollock]

Well, you know that YOU would, for sure, so of course you assume everyone else will act like a scoundrel.

[Squirrelloid]

Want to know when the first election year nominee was ignored without a vote? John Quincy Adams's 1828 nominee Crittendon, whose nomination was tabled indefinitely due to clashes with the Jackson-backing faction of the Democratic-Republicans (who would become the Democrat Party). That's the generation after the founding.

(The first rejected SCOTUS nominee wasn't until James Madison's presidency - most of the early failed nominations were because the nominee declined it).

The founders were well aware parties would lead to partisanship - they weren't stupid. It's why Washington argues against forming political parties at all. (Of course, parties formed almost immediately anyway).

[James Pollock]

" if everyone named in the Constitution did only what that document requires, and nothing further, the federal government could not function."

Republican Utopia!

[rsteinmetz]

I wish everyone on both sides would stop pretending and admit it is a political decision of great importance for the future of the country.

Every recent President has viewed nomination to the Supreme Court as an important piece of his legacy. That won't change.

In 2016 the Senate majority wasn't to wait on the chance that their party would hold the Senate majority and the possible (but not likely) get a new President of their own party. Remember that until election night most people thought Hillary would win.

I was out of town and recall went to bed early. I got a call at 2:00 AM that my MIL had died. I flipped on the TV and found Trump had won. Had Hilly won as most people expected things would have gone on as before, perhaps Hillary would have made a different nomination, perhaps not.

This came about because the Senate and the President were of different parties and have different vision of the future of the country.

The immediate adverse reaction to Trumps win has continued. The Gorsuch nomination and confirmation proceeded fairly regularly, in spite of the opposition's complaining that the seat had been "stolen". The Kavanaugh nomination was a circus, but the result was never really in doubt.

This all flowed from the facts that the President and the Senate were controlled by the same party.

Today the President and the Senate are still controlled by the same party and no one has a right to expect they will not use their positions to nominate and confirm a new justice before the election. It may be Trump will be reelected and the current Senate majority remain in control. It may be that Trump will lose and the majority in the Senate will change.

But is all politics and warping it up as something else is unseemly and distasteful, to me at least.

[Brett Bellmore]

"Every recent President has viewed nomination to the Supreme Court as an important piece of his legacy. That won’t change."

It should. If the Court were functioning as a standard legal court, rather than a 9 person constitutional convention, Supreme court nominations simply wouldn't be that important. The very fact that who a President appoints to the Court is considered one of his most consequential choices is a demonstration of how warped our constitutional system has become thanks to living constitutionalism.

The Court is now the most dangerous branch, not the least.

[James Pollock]

Dangerous????!??

[ReaderY]

The problem with theses sorts of hypocracy arguments is each side is being equally hypocritical. It won’t do to point out the hypocracy of the other side and ignore ones own.

Because the Republicans took action, while the Democrats merely talked, I think the Democrats are more entitled to hold the Republicans responsible here. The side that takes action has more responsibility.

I think the Republicans should bever have presented it as a policy move. It was always an act of power. The Republicans used power - legislative power within their constitutional rights, but nonetheless power - to thwart an Obama appointment, because they thought tipping the balance of the court was too important an issue to be nice on.

Better to admit it, rather than try to claim the Democrats are being hypocritical and they somehow aren’t.

[SKofNJ]

Does McConnell have the votes. That's all that matters. The Constitution gives the Senate the right to reject a President's pick. That means politics matter. When politics matter, the only thing that matters is who has the power. Both sides, supposedly, think they are wielding their powers for the public good. But this time around, the Republicans are in power. Remember what that constitutional law lecturer said a few years ago: Elections have consequences.

[Brett Bellmore]

Apparently at this point it's down to Romney, and Grassley; Snow and Murkowski are already on record opposing, if either Romney or Grassley join them, it's a tie Pence could break, but if both do, the nomination fails.

[Rev. Arthur L. Kirkland]

It seems likely that Sen. McSally is destined to be an 11-month senator (tops) and will never have a chance to vote on a Supreme Court nominee.

[Dr. Ed 2]

Kirkland, do you really think that state will vote for a gun-grabber?
And even the NYTimes says a replacement can't be seated before Nov 30th, but what do they know?

[Rev. Arthur L. Kirkland]

Kelly has had a nice lead in polling for an extended period. Perhaps there aren't as many gun-fondling bigots and superstitious dullards left in modern, improving Arizona as you seem to perceive.

A new senator from Arizona can be seated immediately upon completion and certification of canvassing, so far as I am aware.

Republicans likely will have a reliable picture of what they'll be confronting in 2021 by mid-November, making it likely the self-preservation instinct would disincline efforts to delay implementing the results of the senatorial election in Arizona.

[Dr. Ed 2]

Olympia Snow stopped running some time ago and that seat is held by Anus King, a Democrat who pretends to be an Independent.

You are thinking of Susan Collins, who is in the ultimate no-win situation, being challenged by a younger & prettier woman. If Collins votes with the Dems, the Trumpers will say "bleep her" and blank that race.

Collins is from the same Maine aristocracy as Gov. Janet Mills, whose father was a Republican.

[rsteinmetz]

She would prefer no vote be held before the election. I'm not sure what she will do if a vote is held either before or after the election and the answer after she get re-elected may depend of whether she get re-elected..

[rsteinmetz]

Suppose Trump were to nominate Garland? He was viewed as well qualified and with Roberts could form a centrist core of the court?

Suppose Trump pick a nominee who is well respected by all parties?

Would Collins and Murkowski change their minds? I note they both said they didn't want a vote before the election, but if Trump is reelected or they aren't then a vote after the election could be in order.

[David Nieporent]

Nope. That would be true only if McConnell chose to fold. If he called their bluffs and held the vote, they'd probably abstain rather than voting no. (Neither Collins — not Snowe, of course — nor Murkowski committed to voting no.)

[James Pollock]

Mitch needs 50 yeses out of his 52-member caucus. If just one more is in a state where the incumbent is worrying about losing, I don't think Mitch has them.

[David Nieporent]

No, Mitch doesn't need 50 yeses. He only needs 48 (assuming all Democrats stick together and vote no.) He only needs 50 if some of his caucus members also vote no.

[James Pollock]

To be sure off winning, he needs 50 yes votes plus Pence.

If he only has 48 votes, he can't be sure he'll win.

[MarkW201]

You mean Collins, not Snow(e).

[iowantwo]

The question is not how many. The question is do they vote or abstain. If senators abstain out of protest, that just reduces the number of yes votes needed to carry the day.

[KenveeB]

I don't think it's a question of if they CAN do it, but if they SHOULD do it. Will pushing the nomination now cost them the election?

[Brett Bellmore]

Refusing to push it is as likely to have that result: This is turning into a base turnout election, everybody has made up their minds, and the only question is, who's actually going to show up to vote.

I don't think Democrats can actually get more motivated at this point, they're literally rioting. But you could certainly demoralize Republicans.

[Jimmy the Dane]

I know many a Republican that will stay home if the party doesn't start acting like a national party. Passing on necessary power plays like this doesn't win you voters or policy. The Dems love it when Republicans take the "moderate" bait because it means 9/10 they win.

Pushing through a nominee will mean the seat will belong to most likely a solid conservative. That will bring at least as many people to the ballot box and it might alienate. Passing on a nominee because well that is what liberals would like you to do is going to ensure many Trump voters get frustrated and just stay home.

[James Pollock]

"I know many a Republican that will stay home if the party doesn’t start acting like a national party. Passing on necessary power plays like this doesn’t win you voters or policy. The Dems love it when Republicans take the “moderate” bait because it means 9/10 they win."

Grabbing the short-term win at the expense of the long-term is why you're losing the long-term, and will continue to do so.

[Dr. Ed 2]

Exactly. And men (e.g. Schumer) attacking a woman has bad optics that will force a lot of feminists to make a tough choice.

Reality is that an outright reversal of _Roe_ wouldn't affect 90% of women seeking an abortion and the other 10% would be medically better off traveling a couple hundred miles to where a lot of abortions are performed -- morbidity & mortality are MUCH higher with any infrequently performed surgery. That's a medical fact.

[Sarcastr0]

men (e.g. Schumer) attacking a woman has bad optics that will force a lot of feminists to make a tough choice.

That kind of coddling tokenism is itself a very anti-feminist statement, once again betraying your ignorance of fundamental things.

[James Pollock]

Now you're speaking for the feminists.

[James Pollock]

"I don’t think Democrats can actually get more motivated at this point, they’re literally rioting."

Not yet. give them another push. Seems like a good idea. Try closing all the polling places because coronavirus.

[James Pollock]

"Will pushing the nomination now cost them the election?"

No, Trump himself will take care of that.

[James Pollock]

" Remember what that constitutional law lecturer said a few years ago: Elections have consequences."

That's why Mitch is in a hurry. He doesn't like the signs and portents he's seeing.

[iowantwo]

Its called "bird in the hand"
There is still a lot of things that could rise up an affect the election.

It is old time wise to do now, what is within your power to attain your goals.

[James Pollock]

Are your goals right-now, or are you still hoping to win in the long-term?

[Mike Adamson]

I don't like the idea of another conservative justice but what are you going to do? I also don't like the idea of fiddling with court size but if it's not illegal then what are you going to do? Norms that are no longer shared or followed count for zip. Sad but true.

[Rev. Arthur L. Kirkland]

It's not so sad.

Either way, American progress will continue against conservative wishes and efforts. I can live with just about any reasonably foreseeable course.

[KenveeB]

I have no problem with Trump making a nomination. But I don't think there's time or reason to hold a confirmation hearing before the election. And if Biden wins, I think he should be able to make the nomination. It's what I believed in 2016, and I think it holds as true now. If it had been a longer period of time, you might have a different argument, but this is much too close. Make the nomination, encourage Biden to commit himself to one, and let the people choose.

The Republicans should be agreeing with this plan purely for political reasons. Pushing it is only going to benefit the Democrats by stirring people up who don't like Biden and might have voted third party or stayed home but will be motivated to go out and vote if they get worked up about the court. The Republicans are already about as worked up about the Supreme Court as they're going to get. It's not going to affect their turnout. And when it comes down to it, if Ginsburg is replaced by another liberal, it doesn't really affect things that much. They have a lot worse to lose election-wise by alienating voters than by waiting on the nomination.

[Davy C]

So your plan is to take the court out of the election by... literally making a specific seat rely on the outcome of the election? I don't think you've thought this through.

[iowantwo]

And if Biden wins, I think he should be able to make the nomination. It’s what I believed in 2016, and I think it holds as true now. If it had been a longer period of time, you might have a different argument, but this is much too close. Make the nomination, encourage Biden to commit himself to one, and let the people choose.

Monday Biden refused to reveal his list of potential candidates for SCOTUS, denying the people the option of choosing which slate of nominees would be better for the nation.

[James Pollock]

"Monday Biden refused to reveal his list of potential candidates for SCOTUS"

He's not President, so asking about his candidates is premature.

[Public Quest]

I'm an independent voter. I prefer logic and reason, but you cannot use logic and reason to change opinions that were not reached through logic and reason. For the first time in my life, I genuinely fear for the future due in large part to tribalism and a distinct, even intentional, lack of logic and reason in formulating policy. Any signatories to this letter, who would not sign them name to it again today, are rank hypocrites, not worthy of holding teaching positions.

We need some adults to fix this, with logic and reason. People are casually suggesting tossing about nuclear weapons like they are merely firecrackers. This is insanity.

I have coalesced around these three points:

- leaving the Court with only eight justices, particularly when facing a presidential election that may end up in litigation, is patently unacceptable. Ramming through a new justice in the shadow of that same presidential election is also unpalatable, albeit constitutional.

- court packing will lead to a death spiral ending in unmitigated disaster. Once it starts, there is no way out. This must be prevented by constitutional amendment.

- I think a President should, in large part, see his or her nominees approved, and the advise and consent role should be focused on qualifications for office, and not on political points. I’m not in favor of any age or term limits on justices per se, but I’d like to see every president get to make at least one SCOTUS appointment after each election (which would be a de facto 36 year cap on their terms).

I suggest that in the event of an open seat on the Court, that an interim triad of three judge be promptly appointed from the existing ranks of the judges of the federal courts of appeals, one chosen by the House, one by the Senate, and one by the President. These three interim appointees shall caucus and present a single, tie-breaking, vote. Such decisions will continue to be non-binding as precedent, consistent with existing Court practice. The term of this interim appointment shall end when a replacement justice is confirmed.

During this interim appointment, the President shall continue with the existing practice of nominating a permanent justice for the seat. The Senate shall proceed with its existing role in advice and consent.

If the Senate fails to either reject or confirm a nomination made by the President under Article II, Section 2, Clause 2, within 120 days of such nomination, the President may elect to either grant a Commission of the same form and conditions as one authorized when the Senate is in Recess, or to call a special session of the Senate to convene and act on said nomination no less than five and no more than ten days later, at which a majority of those voting, regardless of the presence or absence of a quorum, shall either reject or confirm said nomination. The Vice President of the United States shall have no Vote, unless they be equally divided.

The Supreme Court of the United States shall consist of the Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.

Unless there is an existing vacancy on the Court, after each presidential election, the most senior justice shall be subject to replacement by the President. Such justice shall continue to serve until his or her replacement has been confirmed.

[Davy C]

Interim Supreme Court nominations aren't really a good idea. I think you underestimate how long it is between argument and decision. You'd be taking three federal judges off of their duties to hear cases that they might not even still be there to rule on 3-4 months later because the new justice has been appointed by then.

Perhaps more importantly, because of the short time frame that they'd have their seat, you'd pretty much know in advance the *specific* cases that they would be ruling on. You'd have Congress/Senate/President nominating people based on how they thought the person would rule on those cases. Frankly I'd rather see a 4-4 tie than that.

[iowantwo]

Every single event that could happen, has a political solution.
You have been brainwashed into believing the judiciary is our savior. The are not. The people through our elected representatives is where the solution rests. If those elected refuse to do their job, the people have chosen that also. Kind of like our cities burning. That is the choice of the people. We will see in a few weeks if the people will choose to continue to live with lawlessness.

[James Pollock]

"I suggest that in the event of an open seat on the Court, that an interim triad of three judge be promptly appointed from the existing ranks of the judges of the federal courts of appeals, one chosen by the House, one by the Senate, and one by the President. These three interim appointees shall caucus and present a single, tie-breaking, vote."

So when future-Mitch doesn't get his way and decides not to let the Senate pick an interim judge, do we just not break any ties?, or hold up all the Court's business until this hypothetical person is strong-armed into doing his (or her) job?

[Rev. Arthur L. Kirkland]

Open wider, Prof. Bernstein.

You, unlike most movement conservatives, seem likely to recognize how much swallowing right-wingers will be doing next year.

I hope you take my advice and make it easier on yourself.

[dwb68]

This post exemplifies the arrogant liberal progressive attitude that will once again ensure Trump victory. "how much swallowing right-wingers will be doing" is almost invariably read by independents and moderates as "shove our progressive policies down your throat."

smh

[Rev. Arthur L. Kirkland]

Keep up the clinger talk and better Americans may start positioning that progress sideways before shoving, dwb.

You've been complying with the preferences of those better Americans thoughout your life, dwb. That is not going to change. Feel free to pray on it a while, though, and whine about it all you want.

[Dr. Ed 2]

Trump will win in a landslide...

[Rev. Arthur L. Kirkland]

. . . and movement conservatives will build a majority on the Harvard, Yale, Michigan, Cal-Irvine, Columbia, Stanford, Penn, and UCLA law faculties.

[David Nieporent]

Once again: nobody intelligent believes that. If they thought Trump were going to win at all, let alone in a landslide, there'd be no rush to ram a nomination through.

[James Pollock]

"Trump will win in a landslide…"

of fraudulent mail-in ballots. He's already asking his supporters to try to vote for him twice.

[iowantwo]

Trump never suggested that

[David Nieporent]

True. He didn't suggest it. He outright advocated for it. Repeatedly.

[Lee Moore]

He recommended that those of his supporters who voted by mail, should - because of the danger of mail-in ballots being lost, stolen or altered - also vote in person if they could.

This is not double voting because the in person vote is reconciled against mail ins and the mail in ballot is rejected if the voter has voted in person.

So no he did not advocate fraudulent mail in ballots.

[James Pollock]

"'how much swallowing right-wingers will be doing' is almost invariably read by independents and moderates as 'shove our progressive policies down your throat.' "

It's amusing when people try to speak for the independents and moderates, who by definition do not have a party line.

Change comes inevitably to both people who embrace it AND to people who resist it with every breath.

[dwb68]

Obama simply did not have the votes for Garland. Nominees whose names are withdrawn face a sigma and are generally not appointed. Not holding a hearing was the the best outcome, if you thought that Garland should be re-nominated by Clinton.

Not that facts actually matter.

I predict Democrats will snatch defeat from the jaws of victory by threatening to Impeach Trump, pack the courts, eliminate the filibuster, and pass a whole bunch of AOC/Sanders approved legislation. It simply does not seem as though they can help themselves and Biden looks feckless for not stopping it.

[James Pollock]

"Obama simply did not have the votes for Garland."

Except he did, which is why Mitch didn't schedule a vote.

[arpiniant1]

The republicans have backed themselves into a corner

LET us say that trump wins but they lose the senate

another nominee gets through for, well anything?

and your complaint will be?

Our gov't runs on traditionand understanding as much as law, and trumpski has upended that

look at the unconfirmed running agencies because this own party wont' call him on it

[Dr. Ed 2]

And Trump doesn't sign a budget, and shuts down the Government for 4 years.

[James Pollock]

And with no budget, Trump stops getting paid for making Secret Service agents stay in his hotel, loses interest in government service and wanders off into the surf.

Then it's all Pence's problem, until he loses a historic landslide, and Republicans don't get to be President for a couple of decades.

[NToJ]

If Republicans lose the Senate, the President will probably not win. It's more likely that he wins and the Senate remains Republican.

[Don Nico]

Unfortunately Trump has only accelerated a downhill slide that began during the Clinton- Gingrich confrontation.
We have not had the kind of "traditional understanding since the Bush-1 administration.

[Davy C]

That election was before I was old enough to vote, but I seem to remember that the Democrats wanted Bush to raise taxes, he did, and then the Democrats attacked him for raising taxes. You can go back as far as you like; it was never really all that innocent for either side.

[James Pollock]

" I seem to remember that the Democrats wanted Bush to raise taxes, he did, and then the Democrats attacked him for raising taxes. "

Close. Republicans were all talking about how keen it would be to balance the budget, but are violently allergic to taxes, so their tactic was to cut everything but defense. That wouldn't have balanced the budget, so George Sr. did in fact sign off on a tax increase. Then the Republicans and their various private-sector allies attacked him for raising taxes. Then a bunch of them voted for Perot instead of Bush Sr., and Clinton won a plurality.

[arpiniant1]

Republicans are liars pure and simple, they will say anything to stay in minority power

[James Pollock]

Nah. Some of them are still just businessmen trying to stave off regulation of business. Old-school Republicans.

[Rev. Arthur L. Kirkland]

I would not object if Republicans installed a Trump nominee -- even a strident clinger. Nor would I object if Republicans waited until next year to see whether they would have the opportunity to propose a replacement for Ruth Bader Ginsburg.

That's because I wouldn't mind relying on the results of the next election. I also wouldn't mind a 7-6 majority for reasoning, tolerant, modern, mainstream Americans on the Supreme Court.

Take you best shot, clingers. Then, if you choose poorly, brace yourselves for the reckoning to be arranged by your betters.

[bernard11]

No comment from Bernstein on the statement from a prominent Republican Senator that,

“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.”

[Jimmy the Dane]

Obama was out of office. Here Trump is up for re-election. The people also flipped the Senate in 2014. Here the people kept the Senate in 2018. Not exactly the same factual scenarios.

[NToJ]

1) I think the President is entitled to make a nomination and the Senate is entitled to vote on the nomination. I think it was wrong of the Republican leadership to deny the public a vote on Garland. It was unsporting, it was undemocratic, and to top it all off they made a mockery of themselves with the tortured arguments for why they weren't going to have the vote. But that doesn't change the fact that elections have consequences, and so a vote we shall have on this nominee. Let the members of the Senate go on record for their respective voters.

2) The fact that President Obama was a lame duck President is irrelevant. He still won an election and so the "American people" did "have a voice in the selection of their next Supreme Court Justice".

3) That the Senate flipped in 2014 was a great reason for the American people to get a Republican Senate vote on President Obama's nominee. That did not happen, not because the Republican Senate voted against the nominee, but because the Majority Leader never held the vote.

4) "the people kept the Senate in 2018" is doing way too much work here. Only 1/3rd of the Senate is up for reelection in any given cycle. Many of "the people" didn't vote for a senate seat, at all.

[Rev. Arthur L. Kirkland]

"I think it was wrong of the Republican leadership to deny the public a vote on Garland. It was unsporting, it was undemocratic, and to top it all off they made a mockery of themselves with the tortured arguments for why they weren’t going to have the vote."

Your point is worthy, but look at the bright side: That move by the Republicans likely accelerated several important reforms, from (1) Supreme Court and House (and Electoral College) enlargement to (2) statehood for Puerto Rico and the Douglass Commonwealth and (3) elimination of the filibuster to (4) expansion of the lower federal courts.

[Davy C]

1) Agreed that the President is entitled to make a nomination and the Senate is entitled to vote on the nomination. However, that doesn't mean the Senate is required to if they choose not to. Also agreed that they made a mockery of themselves with their reasoning. All they had to do was say that they didn't approve of the nominee and they wanted someone who wasn't a liberal on the Court.
2) Agreed.
3) I would have preferred to see a vote, but it didn't really matter. If you don't have the votes to force a vote, you obviously don't have the votes to overcome a filibuster or win the vote.
4) Only 1/3 of the Senate is up, sure, but 2/3 of the states elect a Senator in any given election year.

[James Pollock]

"All they had to do was say that they didn’t approve of the nominee and they wanted someone who wasn’t a liberal on the Court."

Mitch didn't have the votes to actually defeat the confirmation.

[James Pollock]

" I would have preferred to see a vote, but it didn’t really matter. If you don’t have the votes to force a vote, you obviously don’t have the votes to overcome a filibuster or win the vote."

Mitch didn't have the votes to block the confirmation. Had he held a vote, Justice Garland would be now telling the Democrats to shut up about THIS vacancy, and he'd be right to do so.

[James Pollock]

"1) I think the President is entitled to make a nomination and the Senate is entitled to vote on the nomination."

"is entitled to" is not the same thing as "should". We've been content to not bother nominating a homeland security secretary for more than a couple of weeks. How about we do that, first?

"3) That the Senate flipped in 2014 was a great reason for the American people to get a Republican Senate vote on President Obama’s nominee."

The Senate didn't reject the nominee. The Senator from Kentucky rejected the nominee. Maybe the good people of Kentucky could show him some rejection in turn (blatant wishful thinking, I know.)

Gee, Mitch, are you in a big hurry because you think Donald is going to lose in November, or because you think you will? It's got to be one or the other, or getting to this in December or January would be just peachy fine and relaxing.

[NToJ]

1) Elections have consequences. If President Trump puts up a nominee that would pass a year ago, or even when Dems had the Senate, why shouldn’t the nominee get a vote? And if he puts up some cook, why no vote?

[Armchair Lawyer]

1) Did you think it was wrong for the Democrats to deny a vote on Charles Pickering and Pricilla Owen in 2001, for circuit court judge positions?

2) Obama had a voice. He chose someone. The Senate has a role to advise and consent. The Senate viewed their position that they were voted in part to counter balance Obama, so chose to hold off hearings and wait for the people. That's not the current situation.

3) Again, you act like this was a "new" tactic. But Democrats have been using the "We won't even hold a vote" tactic on circuit court judges since 2001.

4) But many of the people DID vote in 2018. And in 2016. And in 2014. The voice was clear here.

[NToJ]

1) For Pickering I don’t know. I don’t know him. For Owen yes, absolutely wrong. She was a great, qualified jurist on SCOTX. Democrats we’re engaged in the same retaliatory bullshit we are talking about here. Thankfully they found their way and Owen was later given a vote, as she should have been in the first place. It’s hard to imagine a gang of 14 moment today.

2) None of which is inconsistent with voting down Garland. But they didn’t do that. Why?

3) How can you even object to misbehavior in 2001 if you think it justifies misbehavior in 2016? Once you make that confession, why should we hear you complain about misbehavior? Same to any Democrat who insists no vote should take place now.

4) You did not disagree with anything I said.

[Lee Moore]

How can you even object to misbehavior in 2001 if you think it justifies misbehavior in 2016?

I don't follow the logic. If Johnny kicks Eddy in the nads, and then Eddy punches Johnny in the face, has Eddy "misbehaved" ?

Certainly either an unprovoked nad-kick or an inprovoked face-punch is misbehavior. But a reasonably proportionate retaliation to someone else's prior misbehavior is not, or at least more than plausibly arguably not, misbehavior; even if the retaliatory act would have qualified as misbehavior had it been unprovoked.

Of course turning the other cheek is admirable. But if you turn the other cheek and your opponent just socks you again, then after n unanswered socks. you're not noble, you're dumb.

[NToJ]

"I don’t follow the logic. If Johnny kicks Eddy in the nads, and then Eddy punches Johnny in the face, has Eddy “misbehaved” ?"

The analogy is inapt. Politics isn't like school-yard fights. More is at stake. The sort of people who would make this analogy are not the ones either of us should want in power. The way for Eddy to punch Johnny, politically, is for Eddy to prove to the rest of the class that Eddy is above Johnny. Because if he does that and wins, he doesn't have to punch Eddy. Eddy is kicked out of the playground.

(Also, if Johnny kicks Eddy in the nads in 2001, and Steven retaliates by punching Frank in the face in 2016, yea, that's misbehavior.)

[James Pollock]

"Obama was out of office."

No he wasn't. He was President when he nominated Mr. Garland, or he wouldn't have been able to nominate Mr. Garland.

"Here Trump is up for re-election."

Even more of an argument to hold up.

" Here the people kept the Senate in 2018" The people lost the Senate in 2018, but they have a good chance to take it in two months. That's what has Mitch scared.

[Dr. Ed 2]

BECAUSE the American People had taken the Senate away from B. Hussain....

[David Nieporent]

Pro tip: it doesn't make you look less racist when you call him that.

(It does make you look more illiterate, since you didn't even spell it correctly.)

[iowantwo]

Using a persons given name is now racist. The Pro tips from leftist keep coming.

[James Pollock]

"Using a persons given name is now racist."

It is, if you edit it first.

[Rev. Arthur L. Kirkland]

How would (or could) Republicans attempt to stop installation of four new Supreme Court justices during the first few months of 2021?

Other than praying on it, I mean.

[Don Nico]

You're just another of the slash and burn types who have degraded American politics for the past 30 years.

[Rev. Arthur L. Kirkland]

You forgot the 'improved America by defeating conservative wishes and efforts' part.

[Don Nico]

More of your usual blah-blah.
You can only reduce every comment to a partisan or ideological snark.

[Rev. Arthur L. Kirkland]

This blog is nothing but partisan polemics and ideological snark (or, at least, attempted snark). If you don't like that content, why are you here?

[grb]

Don Nico : If you don't want slash and burn politics, you have a simple choice : Demand Republicans not escalate this war further with a SCOTUS nomination squeezed into the last days before a election.

But I'm guessing you love slash and burn politics, just as long as your side's slashing & burning. Well, that's your choice, but post-Garland there will be consequences if Trump and McConnell proceed as they say. Think those consequences are bad? Then reconsider your choices.

It's up to you. From Republicans & the Right we have the Number-One rule for this game : There are no rules. Will you really complain when the Democrats play that way too?

[Commenter_XY]

The alternative to praying is by winning future elections. You hustle for votes and get elected. That is how it works.

[Rev. Arthur L. Kirkland]

After Texas modernizes and improves a bit more, the party will be over for Republicans in national elections. Literally. Maybe ditching the bigots and religious kooks would enable a conservative electoral coalition to claw back toward relevance but (1) maybe not and (2) it likely would take time.

[Don Nico]

You really are the worst kind of partisan hack.

[Rev. Arthur L. Kirkland]

Yeah, the evidence- and reality-based kind. From the clinger perspective, that's the worst!

[Commenter_XY]

My observation of American history is the pendulum swings back and forth between the major parties. That is the nature of things.

[NToJ]

The "constitutional argument" they made was:

1) That "advise and consent" has come to include hearings, committee votes, and floor votes.

2) That the exercise of the "advise and consent" duty has occurred previously with presidents in the last year of their term made nominations.

3) Reversing course for that election (2016) and not even considering a nominee would be unprecedented (a word you're very familiar with).

4) The Senate should carry out its discretionary constitutional power to avoid unnecessary splits, and hold hearings and vote on a nominee.

What part of this argument do you find "silly"? Do you think the Senate does not have "discretion in the method of carrying out its constitutional duty"? Do you disagree about the precedent? Is it you don't think vacancies matter? Don't leave us hanging.

[NToJ]

Another thing, they couldn't make the argument in 2020 anyway. 3) is no longer true.

[Commenter_XY]

You are really quite energized by this. Why? loki, I get. You...not so much. The constitution lays out what to do. Why not trust that process?

Look, if the country gets pissed at Team R, there will be hell to pay on November 3. Team D will win it all, and they can expand SCOTUS to 20. Why get worked up about it?

[NToJ]

Upthread you pretend that you're trolling. Down here you're trying to engage me. So you're either a troll or a loser who pretends to be a troll. In neither event, you've successfully convinced me that you aren't a serious person and that there's no reason to engage with you about anything.

[NToJ]

*either

[David Nieporent]

Why get worked up about it?

Because norms are norms for a reason. No institution of more than about 10 people can survive if its culture is, "Whoever has power can do anything he wants as long as it isn't expressly forbidden." One couldn't run a kids' soccer team with that in the long term, let alone a country.

Democrats winning and expanding the court addresses the short term issue of Republicans playing unfairly. It does not address the dysfunction of that. If Democrats expand the court, there are two possible outcomes: they ignore norms and change the rules as necessarily so they can stay in power forever, or the Republicans get back into power and expand the court as much as necessary to put themselves back in control. Repeat, ad nauseam. At which point the court, and the government, can no longer function.

[Armchair Lawyer]

1) "That “advise and consent” has come to include hearings, committee votes, and floor votes."

Except when it doesn't apparently, as Democrats did in 2001 to Bush's circuit court judges.

https://www.heritage.org/testimony/diminished-judiciary-causes-and-effects-the-sustained-high-vacancy-rates-the-federal

[NToJ]

The letter was specifically focused on SCOTUS. How would 4) even make sense re: circuit judges?

[fafalone]

Who's actually pretending they never said what they said in 2016?

There's zero wrong with "We disagree that's what the rule is supposed to be, but you insisted on it, now live with it."

[Jimmy the Dane]

The ultimate nuance that is being ignored by the Left is back in 2016 they made a CONSTITUTIONAL argument that the Senate had an obligation to give a Supreme Court appointment a vote. They like to argue the constitution instead of just saying "norms" or "good governance." The problem is that the CONSTITUTIONAL argument just doesn't evaporate because someone took some bad faith actions one time. If liberals are going to be true to their argument that the constitution compels such a vote then they should do so in good faith now...

[Rev. Arthur L. Kirkland]

I do not object if Republicans to do as they wish -- largely without regard for Democratic preferences, except perhaps to the extent they related to Republicans' self-preservation instinct -- while they have the power.

After that, I will urge Democrats to do as they wish -- without regard to Republican requests, demands, threats, whining, or tears -- when they hold the cards.

May be better ideas win.

Of course, it's easy for me to say that, given our current electorate, the predictable demographic developments, and 60 or 70 years of recent American history.

[Jimmy the Dane]

We will see what the course of history has to write for us, but:

1. Urban voters are going to get less liberal really quick if cities lose prosperity and start looking like the 1970's again after the pandemic leaves us. Since there are no more 'moderate' democrats wouldn't surprise me if we saw a Republican surge in these areas.

2. Previously urban (liberal) voters dispersing into the suburbs might bring their politics with them. Or they might not. Only time will tell.

3. As it does, the hangover from a few years of political correctness is going to come soon and the mass hysteria over 'social justice' is going to end. That is either going to moderate the electorate or perhaps even make it conservative.

4. As minority Americans become more 'mainstream' it will be interesting to see if they start voting their earning class instead of identity. It happened with the Irish and Italian. Don't know why it wouldn't apply to others.

Again though, who knows exactly? Perhaps God. Other then that no one has any idea.

[Rev. Arthur L. Kirkland]

And by God do you mean 8-pound, 6-ounce, sweet baby tiny newborn infant omnipotent Jesus?

Choose reason. Every time. Be an adult.

Or, at least, try.

[Jimmy the Dane]

Jesus may or may not have been omnipotent. Most scholars would argue that he was not, or at least when he was in human form he chose not to exercise such powers. Jesus is also probably not God, but may be depending on which trinitarian you ask. God is certainly omnipotent though.

If you are going to be a snarky ass you could at least strive to be a more accurate jerk.

[Rev. Arthur L. Kirkland]

"God is certainly omnipotent though."

Your illusory god is a paltry thing indeed.

Try to put aside childish things.

[James Pollock]

"Jesus may or may not have been omnipotent."

Either way he had the sense to stay out of politics.

[James Pollock]

So much wishful thinking on display here.

[NToJ]

It is apparent you don't understand the "CONSTITUTIONAL" argument that was made. Go back and read the letter:

"The Senate, of course, has discretion in the method of carrying out its constitutional duty to 'advise and consent,'..."

They didn't say the Constitution compelled the vote, they said the constitutional duty to advise and consent has resulted in a course of dealings that, normatively, should cause the Senate to hold hearings on and vote on a nominee.

[Jimmy the Dane]

Yes I do the current line from the left is no nominee should be entertained.

[NToJ]

You "do" understand the "CONSTITUTIONAL" argument from "back in 2016" because "the current line from the left is no nominee should be entertained"? Explain.

[Jimmy the Dane]

I did you just decided not to listen.

[James Pollock]

"Yes I do the current line from the left is no nominee should be entertained."

You speak for the left now? Do your buddies know?

[Lee Moore]

they said the constitutional duty to advise and consent

But there is no constitutional duty to advise and consent. The Senate has a constitutional right to prevent the President making appointments without its consent. It's a right not a duty. Not the same thing at all.

[fafalone]

It doesn't evaporate but it certainly doesn't mean there's an obligation to let the consequences stand.

The court should be balanced, *then* it would be wrong to repeat the tactic. And by the exact number of improper seats. As much as I vehemently disagree with Kavanaugh on most topics, that seat was filled legitimately, so I wouldn't support expanding the court by 3 or more, only by 2.

You're just throwing out more bad faith justifications. Nobody is going to honestly buy the argument that one side gets to keep everything they get from their bullshit because the other side has to just suck it up and allow it because undoing the ill-gotten gains in the exact same way is somehow impermissible.

[David Nieporent]

The ultimate nuance that is being ignored by the Left is back in 2016 they made a CONSTITUTIONAL argument

Who is this "the Left" and "they"? I'm sure someone made that argument; after all, there are 320 million people in the country, and twitter allows every single one of them to express their views. But that was not the primary argument being made against McConnell's obstructionism.

[Lee Moore]

Well, this very posting begins thus :

A couple of dozen progressive constitutional law professors, including several very prominent ones, have written a letter…

“…Likewise, the Senate's constitutional duty to "advise and consent" – the process that has come to include hearings, committee votes, and floor votes – has no exception for election years….”

And here we have a 2020 RNC ad, consisting entirely of Dem leaders frothing at the mouth in 2016 :

https://pjmedia.com/news-and-politics/matt-margolis/2020/09/21/epic-rnc-ad-features-democrats-calling-for-scotus-vacancy-to-be-filled-n950256

Of the featured stars, Pelosi, Bernie and Warren make explicit appeals to the Constitution. (Not very good ones, admittedly, but a constitutional claim is a constitutional claim, even when it's a feeble one.)

[James Pollock]

"The ultimate nuance that is being ignored by the Left is back in 2016 they made a CONSTITUTIONAL argument that the Senate had an obligation to give a Supreme Court appointment a vote. "

This argument was ignored by Mitch 4 years ago. Pretending that it's inarguable now when it wasn't back then is either intellectually quite lazy or a sign of severe mental defect.

[billatcrea]

Let's dispense with any arguments about principles or precedent. Trump will nominate and the Senate will confirm the appointment of a conservative to the Court because they can. We have long past the point where any consideration is to be given to comity. Our politics are now about power and exercising it whenever beneficial to one side verses the other. Of course in a system of government like ours, where very little can be achieved without compromise, such an approach makes governing via legislation more and more difficult. But who cares. We will now govern via executive decree and the Courts.

[James Pollock]

" Our politics are now about power and exercising it whenever beneficial to one side verses the other."

But just wait for the moaning and gnashing of teeth when the shoe is truly on the other foot.

[Aunt Teefah]

If you think that's bad, there was one law professor who wrote a whole book about how Obama was a "lawless" and "unprecedented" president, yet defends, obfuscates, and dissembles in favor of Trump at every turn.

I guess its just unprincipled hacks all the way down.

[Lawification]

Feel better after that tantrum?

[James Pollock]

Tantrum, where?

[Ilya Shlyakhter]

There's a constitutional duty not to press all constitutional rights to the hilt, because if everyone does, nothing works. It's like that bank run scene from "It's a wonderful life", where the small-town bank needs some customers to _not_ withdraw all their funds if the bank is to survive. So there may not be a Constitutional duty not to block all nominees, or not to pack the courts, or not to shut down the government until you get every last wish; but clearly, if we all do that, the system breaks, so there's an implicit duty to understand that and act accordingly.

[Jerry B.]

"There’s a constitutional duty not to press all constitutional rights to the hilt, because if everyone does, nothing works."

And you can show us where that is in the Constitution, right?

[David Nieporent]

Whoosh!

[Lee Moore]

I think what has whooshed over your own head is that Ilya's first sentence is contradicted by his last. In the last he acknowledges that the duty to cut some slack is not a constitutional duty, it's a moral duty - to keep the show on the road. Hence the use of "constitutional" in the first sentence is a mistake.

Ilya's point is coherent only if you delete that first "constitutional."

[ThomasD]

Silence is speech, no?

[James Pollock]

"Of course, they wrote this in 2016, and almost certainly did not mean it to be taken seriously now that the shoe is on the other foot."

And, of course, it is now everybody's duty to forget what happened in 2016 just like Mitch has forgotten what he did back then.

[Hawk]

If Congress passed a law that defined what it meant to advise and consent be Constitutional? Could they pass a law that stated that if a hearing on a nominee is not held within 90 days consent is deemed?

[ThomasD]

Congress? No. The Senate could make it one of their rules, but they could also repeal that rule at will.

[Hawk]

Precisely why I would like it not to be a Senate rule.

[James Pollock]

"If Congress passed a law that defined what it meant to advise and consent be Constitutional? Could they pass a law that stated that if a hearing on a nominee is not held within 90 days consent is deemed?"

That doesn't eliminate the possibility of shenanigans, it just changes some of the details.
Say that the Senate Majority Leader favors an appointment, but doesn't have the votes to confirm. Boom! just pocket-confirm.

[California Dreamer]

I think it could work as a Senate rule. The rule would set a norm for both parties to follow. Once it was in effect for a number of years, Senators from both parties would, I think, be reluctant to repeal it for short-term political gain, just as the cloture rule has lasted for over a century. I would make the rule slightly different: I would require a vote on the nominee within 90 days unless a 2/3 supermajority votes to extend time. I can imagine situations where new evidence arises at the last minute that, both parties agree, requires further investigation, and that possibility should be incorporated into the rule. Arguably the rule should also contain an exception if a nomination is submitted within 60 days of a Presidential election. But this is quibbling. The key is to enact a rule which both parties commit themselves to follow, thereby setting a standard for when and how these nominations should be brought to a vote.

[James Pollock]

What you need is a different rule depending on whether or not the President's party controls the Senate.

If they do then failing to hold a vote functions as a denial of confirmation.
If they are different parties, then failing to hold a vote functions as a confirmation.

[Lee Moore]

I would require a vote on the nominee within 90 days unless a 2/3 supermajority votes to extend time. I can imagine situations where new evidence arises at the last minute that, both parties agree, requires further investigation, and that possibility should be incorporated into the rule.

Would not the fact that you can't get a 2/3 majority be pretty conclusive evidence that both parties do not agree that the new evidence requires investigation ?

Seems to me that if your exception requires a measure of two party agreement that can be met with a less than 2/3 majority, your exception is swallowing the rule.

Moreover, the notion of embedding things into Senate Rules is dead. It died under Harry Reid's nuclear explosion. The nuclear option was not the change in the filibuster rule, it was the overriding of the Senate Rule for changing Senate Rules, using a parliamentary trick to achieve the change with a simple majority rather than a 2/3 majority.

Your theory that Senators will be wary of repealing 2/3 rules for short term political gain is contradicted by the facts - that's what Harry Reid did. Supported by virtually all his Senators.

And the D reaction, now that the Ds have suffered some blowback from the Rs exploiting the rubble that Harry left behind, is not "mea culpa, it's on us to make the peace." It's "wait till we get in again, we'll make that rubble bounce you bastards !"

[Jerry B.]

Well, politicians and those who support them no matter what, but that's just normal.

[SykesFive]

What value is "intellectual" adding to your sentence?

[epsilon given]

Not me. I knew that the Senate would have had no problem confirming Garland had Democrats controlled the Senate at the time, and I equally know that the Democrats wouldn't hesitate to block any Trump nominee.

It's common sense to expect this!

What's funny to me is seeing all the wailing from Democrats who seem to believe that Republicans would behave otherwise. After a while, I get the sense that the only "consistent" value Democrats hold dear is "if it benefits Democrats, it's good, if it doesn't, it's bad."

[Dan Schiavetta]

Madison's essay is only theoretical and does not specifically say how the Constitution is designed to prevent sabotage by a faction.

The closest he comes to the issue is this:

"If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote: It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the constitution."

This statement is false.

[Sarcastr0]

I'm not so cynical as you. Historically, What McConnell did with Garland was not usual.

If you want to assume good faith on the part of McConnell in 2016, you would be the only one in the nation. And that makes him a liar in 2018. Seems not very charitable.

And Lindsey Graham just looks like a clown.

[ThomasD]

Is it a power grab when the power is already in your possession?

He made a choice, and chose to dress it up in favorable rhetoric.

That is the essence of all politics.

[Dr. Ed 2]

No, the GOP needs to fear the mistakes of General George McClellan -- that's why they need to do this.

[NToJ]

Why do you think he "chose to dress it up in favorable rhetoric"? If your answer is that all politicians lie, why would a politician even bother?

The reality is that even McConnell believes there are voters out there who would disapprove of him just stating the obvious, and his intent is to deceive those voters.

[Dan Schiavetta]

Senators representing 20 percent of the population can bring the federal government to a standstill. This is an art practiced by Republicans only.

[Bob from Ohio]

"his intent is to deceive those voters"

Duh, its always the intent to deceive some set of voters when a politician lies.

[Sam Gompers]

Looks?

Lindsey Graham is a clown. He's the worst.

[epsilon given]

I find it deeply annoying you're willing to deny McConnell good faith, but impart it to Democrats.

For my part, I made it clear to my Senators that I wanted them to deny Garland a seat on the Supreme Court, however they did it -- and I made it clear I wanted them to approve President Trump's nomination this time around.

What's more noble for a politician than trying to satisfy the desires of their constituents?

[NToJ]

People running for or holding political office should not intend to deceive voters.

[Bob from Ohio]

Yet they do. Often and universal.

[NToJ]

They might do so less if people stopped apologizing on their behalf, by falsely treating it as "universal" or "the essence" of what politicians do. Since you don't apparently disagree with my normative statement, and I doubt even you'd have the temerity to lie about your own role as an apologist, what do you plan to do differently to improve the state of politics?

[Bob from Ohio]

"falsely treating it as “universal”"

But it is universal.

[NToJ]

No objection from me. Maybe the US doesn't need as many aircraft carriers as every other country combined.

Just a thought, maybe one way to discourage congenital liars seeking to obtain vast power is to not elect congenital liars? And if we wanted to disincentivize power grabs, maybe don't elect people who use the power of the position to further their pre-existing business ventures?

[NToJ]

@mad_kalak,

Do you think John Kasich is a congenital liar?

[NToJ]

It's not universal. Even if it were universal, there is a matter of degree, and the extent of it isn't universal. But even if it was, what's true today need not be true tomorrow.

[Sarcastr0]

It is not universal - that's why Trump stands out.

But even if it were, we could choose otherwise if we wanted to, and punish revealed dishonesty.

[Bob from Ohio]

You two are both painfully naive.

All politicians lie. Its not just US politicians in 2020, its a universal at all time and places.

Some more than others, that is true, but all do. No one in human history has devised a cure either.

[Lee Moore]

I was assured that the cure to politicians lying had been found and was now up and running.

Dedicated "fact-checking" departments in all the liberal media.

[epsilon given]

"It is not universal – that’s why Trump stands out."

If this is the one way that President Trump stands out from the rest of the politicians, it's a wonder that Hillary was unable to beat him!

Unless it turns out that she, too, was dishonest. But if this is why Trump stands out, then Hillary being dishonest must be an impossibility.

[James Pollock]

" This is an art practiced by Republicans only."

Not really. A slightly longer memory would bring you to the D's attempts to end the Iraq War, between 2006 and 2008.

[MarkW201]

Assuming you are correct on your factual claim, did those Democrats represent only 20% of the population?

[James Pollock]

No, we were pretty much all tired of the war's lack of progress by then. But the ones willing to actually defund the war were less than 20%