Amy Coney Barrett

On Hypocrisy

Who are the hypocrites in the Barrett nomination process?


Hypocrisy, n.  A feigning to be what one is not, or to believe what one does not believe. Behavior that contradicts what one claims to believe or feel. [Merriam-Webster's Third Collegiate Dictionary]

As the World's Greatest Deliberative Body—now there's a phrase you don't hear very much these days!—begins hearings on the Barrett nomination, there's much talk about the stench of hypocrisy wafting over the process. The Republicans, having defended their decision not to consider Merrick Garland's nomination in 2016 on the grounds that they wanted to "let the people decide,"*** now do seem to be engaged in "behavior that contradicts what they claim to believe."

***Just for the record, I have appended to this essay a compilation of the statements made by leading Republican Senators in 2016 to defend their decision not to hold hearings or otherwise act on the Garland nomination. If you have forgotten the explanations they provided to the American people for their actions, you might want to refresh your recollection by reading over that collection.

But there is an argument—I'm not sure whether or not it qualifies as a "trope" or a "meme"—making the rounds these days, arguing that both sides, Republicans and Democrats alike, share in the hypocrisy, in equal measure.

The argument is based on the apparently symmetrical position of the two parties. It goes something like this:

In 2016, Democrats said "the Senate should consider the president's nominee during a presidential election campaign," but in 2020 they say it shouldn't. In 2016, Republicans said "the Senate should wait and let the people decide," but in 2020 they say it shouldn't.

See? Should/shouldn't, shouldn't/should. Six of one, half-dozen of the other. So much hypocrisy, on both sides!

Disturbingly, I've heard this argument from otherwise intelligent and reasonable folks; otherwise, I would simply dismiss it as partisan silliness. It is ill-logical and flat-out wrong, because the positions of the two parties are not symmetrical.  An illustration might make this clear.

Robbie Republican and Debbie Democrat have had a regular high-stakes craps game in the Senate cloakroom for many years. They had a number of informal rules. One was that the games would last for exactly one hour—there was important public business to attend to!  Another was that if the dice fell off the table after a throw, you get to throw again.

During a game in 2016, with 15 minutes to go in their game, Debbie threw the dice and one fell off the table. She picked up the dice again to re-throw, but Robbie grabbed the dice from her hand and said: "No, the re-throw rule doesn't apply when we're near the end of the game." Debbie protested, arguing vehemently that there was no such "end-of-game" exception to the re-throw rule, but Robbie, who was holding the dice, prevailed.

In 2020 they're at it again.  With three minutes to go in their game, Robbie rolls and—oops!—the dice fall off the table.  He picks them up.

Robbie: "I get to roll again." 

Debbie: "Wait just a minute!! You said the re-throw rule doesn't apply when we're near the end of the game. And that was when there were 15 minutes left! We're a lot closer to the end now, and you're telling me the re-throw rule does apply?!"

Robbie: "Yes. The 'end-of-game' exception doesn't apply when I'm winning, only when you're winning. Plus, I'm holding the dice, and I can do what I want with them. I'm rolling again."

Look familiar?  Debbie said the re-throw rule does apply near the end of the game in 2016, but now says it doesn't.  Robbie said the re-throw rule doesn't apply near the end of the game in 2016, but now says it does.

But the hypocrisy here is all on one side. If you have a fourth-grader in your house, ask him/her—fourth-graders usually have a pretty good sense for what's fair and what's not.  The situation is not symmetrical at all. There was an argument about the re-throw rule in 2016. The Democrats/Debbie—the Blue Team—lost the argument. It is not "hypocrisy" for them to invoke the rule in 2020, even if they still believe, in their heart of hearts, that the 2016 rule is a terrible one.  It is not "hypocrisy" to pay your federal income taxes even if you believe, in your heart of hearts, that taxation is unconstitutional.  It is not "hypocrisy" for a judge to apply a rule that he/she thinks ill-formed or ill-advised. It is not "hypocrisy" for you to invoke a zoning regulation against your neighbor's overhanging oak tree, even if the week before you (unsuccessfully) argued at the city council meeting for a repeal of all zoning regulations.

And when Robbie throws Debbie's words from 2016 back against her—"Hey, you're the one who said there shouldn't be an end-of-game exception to the re-throw rule, and now you want one?! Listen to you!!"—he's being kind of a shit, wouldn't you agree? [If not, remind me never to play craps with you]

There is a second argument, beyond the ridiculous "everyone's a hypocrite" argument, that the Red Team has advanced to defend its actions here. "We are actually consistent in our actions in 2016 and 2020," they say, "because our actions are based on a single principle: When there is a Supreme Court vacancy during a presidential election year, the Senate should wait and 'let the people decide' if the Senate and the White House are in different hands, but not otherwise."

Aside from looking like a pretty transparent attempt to concoct some sort of ex post rationalization for the earlier action—akin to something like "the Senate should wait and let the people decide when the deceased Justice is from Queens, but not if she's from Brooklyn"—where did this supposed principle come from, and what sense does it make?

The idea seems to be that when the government is divided, there will be a stalemate, and protracted partisan wrangling, that will further polarize and politicize the atmosphere. No such problem will arise when the president and the Senate are in the same hands.

But why need there be a stalemate?  It's a little disingenuous to create a stalemate ("No hearings for Judge Garland") and justify it with reference to a principle that there will always be a stalemate.  Dozens and dozen of Supreme Court Justices have been nominated and confirmed when the White House and the Senate were controlled by different parties, from Anthony Kennedy to Clarence Thomas to David Souter to John Paul Stevens to Earl Warren to Potter Stewart to William Brennan . . . In many peoples' eyes (including mine) divided government like this is—or used to be—a feature, not a bug; it caused presidents to nominate individuals ideologically acceptable to both parties. People like Merrick Garland, for instance. We used to call it "compromise."

And to be sure, when the government is divided and an election coming up, the balance could shift, and "the people" could express their preference for judicial nominees of one stripe rather than another, resolving the "stalemate."  But that's just as true when the government is not divided; as we all know, there is a possibility that the Blue Team could control both the White House and the Senate come January 21. So why 'let the people decide' in one case but not the other? What gives?


Appendix.  Republican Senators Speak (2016)

"This critical decision should be made after the upcoming presidential election so that the American people have a voice." Richard Shelby, Alabama

"The decision to withhold advancement of Mr. Garland's nomination isn't about the individual, it's about the principle. Alaskans, like all Americans, are in the midst of an important national election. The next Supreme Court justice could fundamentally change the direction of the Court for years to come. Alaskans deserve to have a voice in that direction through their vote, and we will ensure that they have one." Dan Sullivan, Alaska

"Our country is very split and we are in the midst of a highly contested presidential election. My colleagues and I are committed to giving the American people a voice in the direction the court will take for generations to come." John Boozman, Arkansas

"Why would we squelch the voice of the populace? Why would we deny the voters a chance to weigh in on the make-up of the Supreme Court?" Tom Cotton, Arkansas

"I don't think we should be moving forward on a nominee in the last year of this president's term. I would say that if this was a Republlcian president." Marco Rubio, Florida

"A lifetime appointment that could dramatically impact individual freedoms and change the direction of the court for at least a generation is too important to get bogged down in politics. The American people shouldn't be denied a voice. Chuck Grassley, Iowa

"In the midst of a critical election, the American people deserve to have a say in this important decision that will impact the course of our country for years to come." Joni Ernst, Iowa

"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." Mitch McConnell, Kentucky

"The American people should have the opportunity to make their voices heard before filling a lifetime appointment to the nation's highest court. In November, the country will get that chance by choosing a new president – a process that is well underway. Until then, our time should be spent addressing the many other legislative matters before us to strengthen our economy, create jobs, and secure our nation." Roger Wicker, Mississippi

"The replacement of Justice Scalia will have far-reaching impacts on our country for a generation. The American people have already begun voting on who the next president will be and their voice should continue to be reflected in a process that will have lasting implications on our nation. The U.S. Senate should exercise its constitutional powers by not confirming a new Supreme Court justice until the American people elect a new president and have their voices heard." Steve Daines, Montana

"It is crucial for Nebraskans and all Americans to have a voice in the selection of the next person to serve a lifetime appointment on the Supreme Court, and there is precedent to do so. Therefore, I believe this position should not be filled until the election of a new president." Deb Fischer, Nebraska

"The American people deserve a voice in the nomination of the next Supreme Court Justice. This appointment could easily tip the balance of the court in a direction not supported by the American people." Richard Burr, North Carolina

"We are in the middle of a presidential election, and the Senate majority is giving the American people a voice to determine the direction of the Supreme Court." Thom Tillis, North Carolina

"During a very partisan year and a presidential election year … both for the sake of the court and the integrity of the court and the legitimacy of the candidate, it's better to have this occur after we're past this presidential election." Rob Portman, Ohio

"I firmly believe we must let the people decide the Supreme Court's future." Jim Inhofe, Oklahoma

"I support Majority Leader Mitch McConnell and Judiciary Committee Chairman Chuck Grassley's intent to give the American people a say in Justice Scalia's replacement this year at the ballot box." James Lankford, Oklahoma

"With the U.S. Supreme Court's balance at stake, and with the presidential election fewer than eight months away, it is wise to give the American people a more direct voice in the selection and confirmation of the next justice." Pat Toomey, Pennsylvania

"The American people deserve to have their voices heard on the nomination of the next Supreme Court justice, who could fundamentally alter the direction of the Supreme Court for a generation. Since the next presidential election is already underway, the next president should make this lifetime appointment to the Supreme Court." John Thune, South Dakota

"At this critical juncture in our nation's history, Texans and the American people deserve to have a say in the selection of the next lifetime appointment to the Supreme Court.The only way to empower the American people and ensure they have a voice is for the next president to make the nomination to fill this vacancy." John Cornyn, Texas

NEXT: Today in Supreme Court History: September 29, 2005

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  1. ” arguing that both sides, Republicans and Democrats alike, share in the hypocrisy, in equal measure.”

    It’s fair to point out that neither side is currently sticking to the position it claimed in 2016. They aren’t. But the two cases aren’t identical. After Mitch announced the McConnell Rule, the D’s didn’t have anything they could do about, so they accepted it grudgingly (likely VERY grudgingly).
    Obviously, what should be happening is that the 2016 opening be considered to be open again, with Garland’s nomination still pending, and Mitch can either hold a vote on it or wait to see if the Presidency changes hands again.

    1. “When the Senate is held by an opposition party from the President”

      It’s odd how often that little fact is left out of these arguments.

      1. That’s because no one believes it.

        1. Really?

          If the Senate was currently held by the Democrats, do you REALLY believe, they would vote on a Trump nominee and accept it?

          1. “If the Senate was currently held by the Democrats, do you REALLY believe, they would vote on a Trump nominee and accept it?”

            No, because I remember what happened in 2016.

            1. No, because the Dems would have the power to stop the nomination. That’s the real difference between the Garland and Barrett nominations.

              With Garland, the Democrats lacked the power to push through the nomination. Else they would have.

              With Barrett, the Repubs have the power, so they will push it through.

              Given the deep fissure between the parties, how could it be otherwise?

      2. It’s addressed directly in Post’s post.

        As is clear from the quotes he includes, the rationale is complete BS post-facto rationalization for the hypocrisy. No one said anything about the party split in 2016, and some explicitly said they’d do the same if a Republican was President.

        1. Who said they would do the same for a Republican president?

          1. Most notably Graham: “I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said: Let’s let the next president, whoever it might be, make that nomination. And you could use my words against me and you’d be absolutely right.”

            Rubio, from Post’s appendix: “I don’t think we should be moving forward on a nominee in the last year of this president’s term. I would say that if this was a Republlcian president.”

            In 2018, Grassley explicitly said he wouldn’t take up a vote in 2020: “If I’m chairman they won’t take it up. Because I pledged that in 2016. That’s a decision I made a long time ago.”

        2. BTW

          “SENATE MAJORITY LEADER MITCH McCONNELL (R-KY): “Of course it’s within the president’s authority to nominate a successor even in this very rare circumstance — remember that the Senate has not filled a vacancy arising in an election year when there was divided government since 1888, almost 130 years ago … ” (Sen. McConnell, Remarks, 2/22/2016)”

          So, not really “post-facto” is it?

          1. Let’s keep going….

            SEN. McCONNELL: “You did have to go back to 1888, when Grover Cleveland was president, to find the last time a vacancy created in a presidentially elected year was approved by a Senate of a different party. I think you all understand where we are.” (Sen. McConnell, Press Conference, 2/23/2016)

            Or again

            SEN. McCONNELL: “[Y]ou’d have to go back to 1888 when Grover Cleveland was in the White House to find the last time a vacancy created in a presidential year was confirmed by the party opposite the occupant of the White House.” (Sen. McConnell, Press Conference, 3/01/2016)

            1. Oh, and one more time (for early 2020, there’s more in 2016)

              FOX NEWS’ BRETT BAIER: “If the Supreme Court seat were to open up before the November election, would you hold that seat open like you did for Merrick Garland, that rule, to let voters decide which presidential candidate should pick the next justice?”
              SEN. McCONNELL: “Let me remind you what I said in 2016. I said, you’d have to go back to the 1880s to find the last time a vacancy on the Supreme Court, occurring during a presidential election year was confirmed by a Senate of a different party than the president. That was the situation in 2016. That would not be the situation in 2020. I’m not aware of any vacancy, but if you’re asking me a hypothetical about -”
              BAIER: “I am.”
              SEN. McCONNELL: “– whether this Republican Senate would confirm a member of the Supreme Court to a vacancy they created this year –”
              BAIER: “Before November.” MCCONNELL: “Yes. We would fill it.”
              BAIER: “And wouldn’t you hear howls –”
              SEN. MCCONNELL: “I would, but I’d also remind everybody what I just told you, which is the Senate is in the same — of the same party as the president of the United States. And in that situation we would confirm.”
              BAIER: “Will there be any judicial vacancies left unfilled?”
              SEN. MCCONNELL: “I hope not.” (Fox News, 2/13/2020)

              1. I agree that by earlier this year, McConnell had definitely changed his position. In that respect he was smarter than, e.g., Grassley who is on the record earlier this year saying that he thought moving ahead would be inconsistent with 2016. I don’t think that makes it any less hypocritical, though.

                The rest of your quotes don’t do the work that you’re hoping they do, though. Sure, McConnell may have mentioned that a justice hadn’t been confirmed under divided government in an election year since 1888, but at no point does he actually articulate that being a condition of the principle. Just look at all the quotes that Post includes in the appendix–none of them make any mention of this concept. Even with your rigorous searching, you can’t manage to find a context in which McConnell states this as a limiting principle of the “rule” or even in the same paragraph as the rule.

                1. Additionally, the above quotes leave out what McConnell said just prior to hos comments about 1888

                  You’d have to go back 80 years to find the last time a Supreme Court vacancy occurring in a presidential year was approved.

                  At best for McConnell’s argument, his reference to 1888 is only a hint at a distinction that wasn’t recognized by people at the time. At worst, it’s a sidebar with no relevance to his main argument.

                  1. At best for McConnell’s argument, his reference to 1888 is only a hint at a distinction that wasn’t recognized by people at the time.

                    And so, at best he’s not being hypocritical. Because hypocriticality depends on whether that distinction was in his mind, not on whether his distinction was “recognized by people at the time.”

                    Which is not to say that we must view his remarks “at best”, we are perfectly entitled to take them “at worst” if we prefer. All the same charges of hypocriticality work best when you don’t have to assume the worst from ambiguous remarks.

                    Nor, of course, is it to say that, simply under the laws of probability, a sentence including the word “Senator” and the words “lips moving” would not often be expected also to contain the word “hypocritical.”

                    1. Simply being “in his mind” doesn’t suffice as a defense against hypocrisy. It would have to be “in his mind” as an argument for his decision, in which case why wouldn’t he publicly state the argument?

                    2. Because hypocrisy involves pretending to a standard which you do not intend to apply to yourself. The fact that other folk may not have understood the standard to which you intend to bind yourself does not bind you to the standard that those others may imagine you have set for yourself.

                      But in any event, on your “at best” interpretation, he didn’t keep his standard in his mind :

                      “his reference to 1888 is only a hint at a distinction that wasn’t recognized by people at the time”

                      Consequently, on that interpretation, he expressed a hint at a distinction between the standard he was asserting in 2016 and the one that other folk are seeking to hold him to in 2020. The fact that the distinction wasn’t recognised by other people at the time is not relevant to his hypocrisy or lack of it.

                    3. A hint of a distinction isn’t a distinction.

                    4. Agreed, a hint of a distinction is not, in itself, a distinction.

                      It is evidence for the existence of a distinction. Weak evidence because of the imprecision, but some evidence nonetheless.

                      It certainly doesn’t constitute evidence that there is no distinction.

                    5. I would characterize it as very weak evidence.

              2. The problem with your brilliant attempt at a mic-drop, is that you have to show the number of times a SCOTUS position has actually had a nomination during an election year and then the Senate refused to act on it. If a vacancy hasn’t occurred during an election year since 1888 until Garland, then your quotes mean absolutely nothing.

                Since you’re a disingenuous piece of partisan trash, I don’t expect you to do so.

                1. There were six election-year vacancies after 1888 and before 2016. A new justice was confirmed before the inauguration in four of those cases. In each of the four cases, the Senate majority was of the same party as the president. In two cases, a new justice was not confirmed before the inauguration. In one case, the Senate majority was of the same party as the president, in the other it was different.

                  However, three of the four cases where a pre-inauguration confirmation occurred, the vacancy was before February. The other three cases had the vacancy after June 1.

      3. “‘When the Senate is held by an opposition party from the President’

        It’s odd how often that little fact is left out of these arguments.”

        Might as well replace it with “When the President isn’t a Republican”… it’s just as accurate, if not more indicative of what the guiding principle was.

        1. Or if the Senate was held by the Democrats, and a Republican nominated the judge….

          Come to think of it, that’s EXACTLY what happened in 2001. Bush nominated judges for the circuit court, and Democrats in the Senate just chose not to hold hearings….

          1. Was it OK in 2001? If not, why was it OK in 2016?

            1. You can’t have a system where one side unilaterally disarms…

          2. Read Adler’s posts on judicial nomination votes. The parties have been trading escalating obstructions on district and circuit court nominations for 30 yrs. McConnell took what you describe to another level under Obama, and it was considered business as usual. This is not that.

            1. “The parties have been trading escalating obstructions on district and circuit court nominations for 30 yrs.”

              They have been. Bush II tried to de-escalate and nominate some judges that Clinton had nominated. Democrats in the Senate took that de-escalation and said “pfff, stupid Bush”, and then denied votes on the rest of his judges. Then when they were voted out of power in the Senate they fillibustered all Bush’s judges.

              McConnell is only doing what the Democrats said they would do in 2007.

              1. BS. It’s worked both ways on the lower courts. See what McConnell did on blue slips. The Supreme Court has always had its own norms. The Garland-Barrett hypocrisy two step is sui generis.

                1. Only if you hold your telescope to your blind eye.

                  Norms had been fractured for the lower courts, leaving the norminess of norms fragie at best. Even if you postulate the specialness of SCOTUS, the Ds had already had three unanswered kicks at SCOTUS norms before the Garland affair.

                  1. the borking of Bork. Which has never happened to a D nominee before or since.

                  2. the Anita Hilling of Thomas. Which has never happened to a D nominee before or since. (Though it has happened to another R nominee – in spades.)

                  3. The filibustering of Alito. Which has never happened to a D nominee before or since, except the bipartisan filibustering of Abe Fortas’s proposed hop from Associate to Chief Justice.

                  So the norminess of SCOTUS norms was looking pretty ragged long before Garland. You feel the pain of Garland because it was the first time on SCOTUS that the Republicans kicked back.

                  1. Skimming back through earlier VC pieces, I note that Prof Adler did a potted history of the judicial wars tit for tat, and noted – which I did not know – that Rehnquist was filibustered in 1971 on his way to SCOTUS and then again in 1986 on his way to Chief Justice.

                    We’ll ignore the 1986 incident as Associate to Chief Justice doesn’t change who sits on the court, and anyway it had been done to Abe Fortas (albeit bipartisanly and not ideologically) less than 20 years previously.

                    So we’ll just add the 1971 filibuster of Rehnquist to the list as a fourth kick.

                    Note, again, I am only recording SCOTUS norm-kicking, in response to Leo’s insistence that SCOTUS is different !

      4. That’s less a principle of democracy and more a statement of practicality. An opposing party doesn’t have to confirm a nomination in an election year, but might have to bow to practicality and fill a vacant seat the rest of the time. Even if McConnell clearly articulated that position from the beginning (I’m less convinced of that), many others who joined in must have missed that distinction and spoke very clearly that the goal is to have the voters have a say in the process – which applies regardless of which party we’re talking about.

        I say this believing that Garland would have lost if a vote had come before the Senate and that there’s no real meaningful difference between not allowing a vote and rejecting a candidate. But, if it’s a question of hypocrisy, I think the hypocrisy is apparent.

      5. It wasn’t part of the “argument” in 2016.

        It was only tacked on by Republicans (after the fact) to try and hide their obvious hypocrisy.

    2. Maybe Harry Reid can come out of retirement to explain the principle clearly so everyone understands it, but I’ll take a shot at it:
      Whichever party controls the Senate makes the rules that the current version of the game will use.

      So let’s apply that principle, in previous Senates the rule was a judicial nomination could be filibustered, for instance when Obama was in the Senate he attempted to Filibuster Alito’s confirmation. Reid decided that rule was not advantageous for his party for lower courts and engineered a change but left the filibuster in place for the Supreme Court. Mcconnell however a few years later decided getting rid of the filibuster for Supreme Court was good for his party so the rule was changed again.

      See how it works? The party in power sets the rules to their advantage, and makes sure that the rules conform to making sure whoever has the most votes ends up winning.

      I can’t believe Post is so naive he needed me to explain that to him.

      1. Reid decided that rule was not advantageous for his party for lower courts and engineered a change but left the filibuster in place for the Supreme Court.

        Another way of putting it, and one which gets te politics right, is that Reid engineered a change for those classes of office for which there were then current vacancies, and left the filibuster in place for the one class of office for which there was then no current vacancy.

  2. Thanks for this post. It’s the job of a lawyer to think clearly and you’re doing it here.

    1. Agreed. I made this exact point a week or so ago. Sadly, the far-right conservative I was responding to in that thread failed to see that the Dems’ argument and the Reps’ argument were NOT symmetrical. Hopefully, the fact that it’s now coming from a Conspirator will give my argument a bit more gravitas. 🙂

      1. Nah, it’s just Post.

  3. Carrying forward the grade school analogy.
    Did anyone check in 2016 whether republican senators had their fingers crossed behind their back?
    Was any democrat gullible enough then to consider such a promise to be binding, without first spitting on their palms then shaking hands while standing on one foot? If not, then they basically double-dog dared the republicans to do just as they are now.

    1. Oh, everyone knew the Republicans were lying in 2016. The question is what, if anything, the Democrats could do about it. If you don’t have the votes, you don’t have the votes.

  4. Or maybe what people, including politicians, feel and say does not really matter, at least compared to what is written in law.

    1. It apparently matters a great deal to politicians, since they expend a lot of effort on messaging. Note the appendix. The Republican Senators went on the record with a lie to the American public, and now they’ve all but admitted it was a lie.

      1. *When the Senate is held by the opposition party from the president….

        1. If that was the part of the original argument and not a selectively applied afterthought, why did all the GOP senators quoted in the OP forget to mention it?

  5. Not complicated, nominated by the President confirmed by the Senate, but then there are those among who believe are smarter than the founders.

    1. ” nominated by the President confirmed by the Senate, but then there are those among who believe are smarter than the founders.”

      Fine. Garland was never rejected by a Senate vote, and his nomination was never withdrawn, so his nomination is properly before the Senate, before any action on Trump’s nominee can be taken.

      1. Wrong. Obama’s nomination of Garland expired when the Senate session ended. From wikipedia:

        “Even so, the Senate can achieve the same outcome without taking vote to postpone.[17] It can simply choose to take no action on a nomination, which expires at the end of the session. For example, President Dwight Eisenhower’s first nomination of John Marshall Harlan II in November 1954 was not acted on by the Senate; Eisenhower re-nominated Harlan in January 1955, and Harlan was confirmed two months later. Most recently, the Senate refused to consider President Barack Obama’s March 2016 nomination of Merrick Garland; the nomination expired in January 2017, and the vacancy was later filled by President Donald Trump’s appointment of Neil Gorsuch.[18]”

  6. What makes the situation non-symmetrical is that if Garland had been given a vote in 2016, with or without hearings, he would have lost. The Republicans had a majority in the Senate.

    Then, presumably, Obama would have submitted other nominations, and they too would have lost. Result: the same as the actual result, except that the Senate would have wasted a lot of time going through the motions. I thought it was quite smart of them not to bother.

    1. The hypocrisy isn’t in denying Garland a vote. It’s in denying him confirmation, with or without a vote, because it was an election year, while confirming Barrett in an election year.

      1. My thought at the time was the Republicans should bring it to a vote, then have the ‘nads to vote it down, then they are clear through the election. Wishful thinking to be sure.

        I did also note the Tea Party was still fresh, a rebellion among Republicans for going along with the Democrats too much, so in no way would I ever expect them to acquiesce on this issue.

        That is still in play today, so don’t expect changes. Launch rhetoric if you desire, but know the controlling background.

    2. It’s not a foregone conclusion that Garland would have lost. And if he had lost, some Republican Senators might not have won their reelection campaigns. Two Republicans had already defected from the party re: no hearings.

      It was cowardice for the Republicans to purport to protect American’s right to choose without also holding hearings and giving Americans the opportunity to see how the Republicans would conduct the Garland confirmation process. The incongruity can only be explained by partisan dishonesty, which is why you thought it “was quite smart”. Because you’re a partisan hack.

      1. Garland’s nomination was purposely designed to pickup a handful of GOP votes. He was respected by both parties, well-on in years so he wouldn’t spend decades on the court, and known for moderate views. Some of the Senators who get lambasted as rinos would certainty have voted for him. The reason McConnell weaseled was because he wasn’t sure of blocking Garland if it went to a full vote.

        1. McConnell knew he was going to put his Senators in a tough spot, especially those (like Orrin Hatch) who had previously said they would vote yea on Garland. So he had to cook up a lie and feed it to the public.

          1. Hmm. Have judges EVER been denied a vote before in the full Senate? Not just SCOTUS judges but circuit court judges?

            1. Never as a matter of “principle” until 2016.

              1. Never as a matter of “principle” until 2016.

                Oh, interesting. Prior to 2016, what high-minded reasons were behind an opposite-party Senate not acting on a nomination?

              1. So, you’re saying Democrat senators “cooked up a lie” on previous judges?


            2. The GOP Senators told W to shove Harriet Miers up his…

    3. I didn’t. “Going through the motions” is how we establish that the Senate, rather than just one guy, is calling the shots. One of the things that’s dysfunctional about Congress is that the “leadership” have managed to transfer almost all the power that was supposed to be distributed over the membership into their own hands.

      I certainly wanted Garland voted down, and it obviously was neither unprecedented nor unconstitutional for the Senate to simply ignore the nomination, but that one guy made that call is, in fact, a really bad thing.

      1. I agree with Brett as to the desirability of a vote, and undesirability of letting one Senator control things.

        I would go further. I think a great many of the “parliamentary maneuvers” are games intended to prevent votes, and should be abandoned.

        The job of Congress, fundamentally, is to vote. They should stand up and do that job, and be on the record.

    4. “What makes the situation non-symmetrical is that if Garland had been given a vote in 2016, with or without hearings, he would have lost. The Republicans had a majority in the Senate.”

      Mitch didn’t have the votes to formally reject the nomination, so he didn’t ask for any. He just didn’t schedule a vote on the nomination.

    5. Why would Garland, and every other Obama nominee, have lost? Sure, if the Senate declares “We’re not going to go through with hearings on anyone you nominate,” then that’s that. But you can’t possibly use that to justify the decision not to hold hearings!

    6. The prior vote that the Senate held on confirming Garland to his prior seat was 99-1. Had it come to a vote in 2016 he would not have lost and everyone particularly McConnell knew it.

      1. His prior seat wasn’t on the country’s perpetual 9 man constitutional convention.

      2. The prior vote that the Senate held on confirming Garland to his prior seat was 99-1

        Que ? He was confirmed 76-23.

        Moreover, he had previously been Garlanded. He was originally nominated by Bill Clinton in September 1995, but Senate Republicans did not hold confirmation vote “not because of concerns over Garland’s qualifications but because of a dispute over whether to fill the seat”

        ie precisely what happened to him in 2016 had already happened to him before, in 1995-96.

        He was renominated in 1997 after Clinton was re-elected in 1996, and confirmed, by a Republican Senate, in March 1997.

        I would be inclined to believe that if Hillary had won and had renominated him, but the GOP had retained the Senate, they would probably have acknowledged defeat and confirmed him. But whether he would have been confirmed in a 2016 vote is much more speculative. I think it highly unlikely, as discussed in previous threads.

        This btw is one of the obvious flaws in David Post’s children’s parlor game. When the die is cast and stays on the table, the answer is there facing up on the table. It does not require the other player to say “OK having thought about it, I’ve decided to accept to that 5 you threw.”

        Whereas with Senate casting the die successfully onto the table is not the end of the matter. It is, as the man said, not the end, nor the beginning of the end, it is merely the end of the beginning.

        As Garland could have told you himself, long before 2016.

    7. What makes the situation non-symmetrical is that if Garland had been given a vote in 2016, with or without hearings, he would have lost. The Republicans had a majority in the Senate.

      Nope. There weren’t 50 votes against him. That’s precisely why McConnell refused to allow a vote.

      1. Even if you’re right – which I very much doubt – there were certainly 41 votes against him and that would have been plenty.

    8. That puts result before process. In 2016, there were 54 Senate Republicans. If the president put up a moderate nominee like, say, Merrick Garland, it’s possible that at least 5 senators from that party could be swayed to vote for him based on fair consideration of his record. (Consider Sonia Sotomayor – 68-31; Elena Kagan – 63-37; John Roberts – 78-22; Samuel Alito – 58-42; for many nominees, at least a few votes cross the party aisle.) If the nominee failed, the president would have time to try one or two other nominees who represented other attempts at compromise. Without going through the process, it’s hard to know what would have happened.

      People tend to forget that partisanship is not a foregone conclusion. It is a continual choice, set by party leadership and followed by the members of that party. Mitch McConnell likely avoided proceedings and a vote because that would offer other senators more choice to, potentially, defy the partisan line. In other words, he didn’t want to risk the result deviating from his expectations. That fostered further partisanship, especially if he now refuses to follow the norm he has now created. If McConnell had compromised or, at least, let the proceedings run their course, then so many members of his party would not carry the stain of hypocrisy in proposing to move quickly now.

      1. Sotomayor, Kagan, Roberts and Alito were all like for like swaps. Garland for Scalia would have flipped the majority. The stakes were MUCH higher.

        The real choice facing McConnell was

        (a) what he did
        (b) letting matters take their course

        Given the stakes, and even stipulating a few GOP defections, much the most probable result of (b) would have been Garland failing to beat a filibuster. He’d have needed 14 GOP Senators to vote for cloture, with the stakes being to flip SCOTUS.

        GOP Senators had only recently been through the fun of the Tea Party, and were busy watching, in horror, as Trump was winning the party nomination. The idea that fourteen GOP Senators would have been willing to force through a vote to flip SCOTUS is fanciful in the extreme.

        (a) was clearly politically preferable to (b)

        1. A successful filibuster against Garland even though he had 51 votes to confirm would have set a precedent that meant none of Gorsuch, Kavanaugh or Barrett could be confirmed. But of course, McConnell would have likely ignored that precedent as well and done away with the filibuster for Supreme Court nominees.

          1. Precisely. That is why (a) was preferable to (b) politically. No need to risk an embarrassing 51-49 vote to break a filibuster, which might indicate majority support for the nominee. Better not to have a vote at all, and eliminate such a risk.

            And as for the filibuster, correct too. Post Harry, either party in control of the Senate, having a majority for one of their side’s nominees, but finding a floor vote stymied by not having 60 to break the filibuster, would have nuked the filibuster.

            But no one would seriously have expected them to nuke the filibuster to force the other side’s nominee through.

            Once nuked, it’s nuked, but no need to nuke it before you need to. Which, after all, was Harry’s reason for leaving it un-nuked in the first place.

            1. I agree (a) is less embarrassing politically, but it’s still an act of hypocrisy.

              1. Well, as discussed above, McConnell left himself enough wiggle room to have at least an argument against a charge of hypocrisy, even if one or two others may not have done.

                In choosing the lower risk path to his desired result, he may have left himself open to a charge of “cowardice” from his opponents – although his supporters might prefer to deploy “prudence” instead.

                For myself, I am not much opposed to cowardly / prudent politicians. The ones I worry about are those who are not afraid of the voters.

  7. 1. I’m sure this thread will be productive.

    2. None of it matters; it’s just further evidence that America is a banana republic. It’s almost funny that the usual suspects were so worried about a Clinton Presidency in 2016 and the parade of horribles (remember the incredibly stupid “seizing the airplane” or whatever nonsense), and yet here we are.

    More than 200,000 Americans dead.
    The Rule of Law in the toilet.
    A President who lies as of course, and is tenaciously clinging to power in order to avoid the numerous legal and financial issues that he has.
    A DOJ that is actively trying to interfere in the election (what, did no one else notice the numerous resignations of DOJ attorneys? that’s not normal).
    The mainstreaming of crazy MICK!!11!! approved conspiracy theories, to the extent that a sizable portion of the GOP base (now there’s a phrase) believes in child-molesting nonsense.

    And, of course, the typical BS of people who keep going to places and complaining, “Oh noes, why are so many of my favorite websites only telling one side of the political story? Why are you bad meanies all engaged In TDS and making me feel bad about myself?”

    Because we don’t much like the looming manufactured election crisis, or the “both sides” BS, or the “trolling the libtards” that have gotten us here.

    You have not just failed the country, you have made a failed country. Trump is not the sad man of the world; America is.


    1. 1: Biden gets elected.
      2: Stock market crashes.
      3: GOP wins 2022 election in landslide.
      4: Biden & Harris Impeached on a pretext.

      GOP says “hey, you did it to our guy” — except this time we have the votes to convict….

      Welcome to the country YOU have created…

      1. Nice try Dr. Ed!

        I mean, you are completely believable! Your stories, your anecdotes, your attempts to apply statutes which occasionally even use the correct acronyms!

        When Dr. Ed speaks, people listen. Then they laugh. Then they realize it is performance art.

        Tell me more about Maine. Are you wearing hunter’s orange while you type?

        1. Dr. Ed (by his own admission) is in hiding on an unidentified island somewhere between Cape Ann and mid-coast Maine. There are still people who would do him harm.

      2. That’s a rather unbelievable scenario. I mean, 1 and 2 are reasonable, but you really think 2022 is going to feature a fair election if the Democrats are in a position to say anything about it?

        Unless something drastic changes in the nature of the Democratic party, the next election that gives them the White house and both chambers of Congress will be the last competitive federal election for this country. They’ve gotten over the notion that they’re going to eventually take over by fair means, and moved onto foul.

        1. If we had fair means — no electoral college, proportionately elected senators, no gerrymandered seats — the Democrats would have taken over by fair means long ago. You’re just worried they might level the playing field and the GOP will lose the unfair advantages it currently has.

          1. Yrs, you now define following the rules as foul means, if you don’t win under them.

            1. No, I’m saying that when you benefit from rules that are themselves unfair, you’re not in a really great position to argue that other people aren’t acting fairly.

              Suppose there were a rule that said that Democrats will hold the White house in perpetuity. That would be the rule. Would you say it’s a fair rule? Would you say that the Democrats in the White House got there by fair means?

              1. The EC serves a purpose. You’d have to change the Constitution to remove it. And plenty of states will tell you to go f yourself should you try.

                1. The EC currently serves no purpose. It skews votes so that someone from California or Texas matters much less than someone from Wyoming. They simply pass their votes along and take no action on their own behalf (ie. going against their voters’ wishes.) Were they to ever go against the voters’ wishes, we’d rightfully have riots.

                  You can try to argue that there is some noble purpose and that there ever was but it’s bollocks.

                  1. We don’t want CA and NY running the country. Deal with it. Don’t whine because you have difficulty winning by the rules in place for centuries.

                    1. It’s not NY and CA. It’s American voters who live in NY and CA. Whom you think should be disenfranchised because you disagree with them.

                2. Yes, it serves the purpose of providing affirmative action to Republicans who can’t win fair elections.

                  1. Yes, it serves the purpose of providing affirmative action to Republicans who can’t win fair elections.

                    That’s a rather odd claim to make. Until 2019 (after the 2018 mid-terms) the U.S. House of Representatives was controlled by the Republicans. And while the Ds now control that house, they do so by a slightly lower margin than the Rs did before them. And as you know, the Rs actually increased their lead in the Senate.

                    But more interestingly, let’s look at the state level. Ignoring Nebraska (which has a unicameral legislature) 52% of all state legislators have an (R) next to their names, as opposed to 47% with (D)s. 60% of statue legislature houses are controlled by Rs. 59% of state legislatures as a whole are controlled by Rs. 52% of state governors are Rs. Of the states where control of the legislative and executive branches is not split, 58% are controlled by Rs.

                    But what about if we weight state-level representation by population? As it turns out, the Rs still have the edge. When you take each party’s control…as a % of all seats…of the state legislative houses and multiply that by their states’ populations you find that ~52% of the nation’s population is represented by Rs in the states Houses, and ~55% are represented by Rs in the state Senates.

                    So I’m not sure what your claim is based on, other than the fact that you want to believe that it’s true.

                    1. It’s based on the fact that in two of the last four presidential elections, the electoral college elected a Republican who had lost the popular vote. Since we were specifically discussing the electoral college, the makeup of state legislatures is irrelevant.

                      However, if you want to bring the makeup of legislative bodies into it, if you add the total national vote for Congress (meaning nationwide, how many people vote for Democrats and how many for Republicans), most years more people vote for Democrats than Republicans. However, since 400,000 Wyoming voters cancel out 30 million Californians in the US Senate, the Republicans control the Senate despite Democrats getting more votes. And House seats are heavily gerrymandered.

                      As are state legislatures. IIRC, in the last election, 60% of Wisconsin voters voted for Democrats for the state legislature, yet because of gerrymandered seats, Republicans control both chambers.

                      Give Democrats fair elections — no electoral college, proportionate Senate representation, and no gerrymandered seats — and we’ll win them.

                3. damikesc — It is one thing to cling stubbornly to an outmoded structure which threatens to bring existential crisis to the nation. There might be some intellectually respectable argument to be made.

                  It is another thing to hurl the, “Get an amendment,” taunt at people who want that problem addressed. You want to read the militia clause out of the 2A? Get an amendment.

                  We could all do that. But for some reason it is almost always right wingers who do it. That is one of the ways you know the complaints about structural bias in American politics are justified.

                4. There was an article here not too long ago explaining proposed legislation which might have a chance of success and which would effectively solve the electoral college problem. States can allocate their electors as their legislatures so legislate. In the wake of an election, as some have suggested that the Republicans are planning, probably not so much.

            2. I mean, following the rules and making votes count 1 person=1 vote isn’t even up for debate as being fair. Small states already count in the Senate- it’s absurd the tyranny of the minority extends to the executive too.

              There’s also a reason you always see Republicans trying to disenfranchise and suppress votes and it has nothing to do with “fraud.” Trump himself acknowledges Rs would never win again if voter turnout went up.

              Truly fair elections would probably be ranked choice or some other form, one person one vote, more devolution of power to states to ensure that “big ones” don’t override smaller ones, free and easy voting, etc.

          2. Krychek_2 — I disagree with that, and with Bellmore, more with Bellmore than with you. If Democratic Party majoritarian structural changes make things too hard for a movement conservative GOP, what results will be a changed GOP.

            Movement conservatism will be out, and centrist conservatism will be revived. How many election cycles that may take will depend on how long a fractured GOP is willing to endure remaining powerless. But when the change does come, it will be good for the GOP, it will improve the Democrats, and it will be good for the nation.

            Majoritarian structural change of the nation’s politics is indeed the starting point on the route back to political health and a stronger nation. It can’t happen soon enough.

            1. Stephen, the latest revelations about Trump’s taxes show unequivocally that he could not get a security clearance if he weren’t president. He’s in hock for millions of dollars, a lot of it to foreign governments, and like the Bible says, the borrower is servant unto the lender. If he manages to pull off re-election, the paltry checks and balances that somewhat constrained him in a first term will no longer be there. A second Trump term will be — not could be — catastrophic.

              Yet the GOP considers him preferable to poor children having health care and gay marriage, which tells you everything you need to know about the GOP.

              Although I’m a Democrat, I would not want the Democrats to be unchecked by a strong, viable second party. I’d like it to be the centrist conservatives you referenced. If the GOP were still run by the likes of Gerald Ford and Nelson Rockefeller and Robert Griffith and Everett Dirksen, I might still be voting Republican. But the GOP in its current incarnation needs to die. Hopefully before it kills off the country first.

              1. the latest revelations about Trump’s taxes show unequivocally that he could not get a security clearance if he weren’t president

                LOL! What exactly did you find to be the biggest “revelations” in the NYT’s allegations about Trump’s tax data?

                1. Tax fraud.

                  In debt to multiple foreign governments.

                  If you managed to pretend that you understood security clearances for even an instant, you’d realize that Trump would not get a security clearance from ANY person in ANY branch of the military because he’s a clear danger of being blackmailed and turned.

                  Not to mention his ‘character’ and habitual lying.

                  But you’re just another Trumptard trying to pretend that nothing bad about your savior matters, and that he hasn’t done anything whatsoever to harm America.

                  1. Tax fraud.

                    That’s an odd claim. The NYT didn’t even claim to have found anything of the sort. The IRS has had Trumps returns all along, and has even audited him (multiple times, from what I understand). So where are the charges?

                    In debt to multiple foreign governments.

                    Cite on those debts? Be specific…and remember that the “Deutsche” in “Deutsche Bank” doesn’t mean the government of Germany.

                    Given your 3rd grade “Trumptard” epithet I don’t expect anything in the way of an intelligent follow-up.

                  1. The thing everyone reports is the losses–the shareholder (Trump) has lost more than £7M.
                    But the interesting stuff is the fixed asset value and the creditors–over one year.
                    Trump is all of them: he owns the asset, lends the money, owes the money, is owed the money.
                    We see the same process year after year. He lends himself millions, the asset value is increased by that same number of millions.
                    This happens in many years when he does no work on the property–no investment, no building.
                    It happened through the 2008 crash.

                    Aberdeen was collapsing from the overall financial crisis and the–locally–far worse collapse of North Sea Oil. Property values were shrinking.
                    Trump Aberdeen saw the same process–no development, but huge loans from Trump and huge increase in claimed asset value.

                    [T]he overall picture is crystal clear: Every year, Trump lends millions to himself, spends all that money on something, and claims the asset is worth all the money he spent.
                    He cannot have spent all that money on the properties. We have the planning docs. We know how much he spent–it’s far less than what he claims.

                    The money truly disappears. It goes from one pocket to another pocket and then the pocket is opened to reveal nothing is there.

                    A bit of this could be explained as tax avoidance or fraud. But he is going to enormous effort to falsify upwards the overall valuation of the property–the opposite of what he’d do if this was solely tax fraud.

                    Instead, this is a huge effort to mask a money pit as an appreciating asset–in other words, one he can’t write off.
                    That is why I am skeptical of the idea that this is all his own money.
                    I have shown these docs to many accountants, lawyers, prosecutors, FBI agent, etc.

                    Nobody has come up with a plausible legitimate reason for these accounting shenanigans. And all agree it’s a bit ornate and not quite right for simple tax avoidance.

                    The most likely explanation is, of course, money laundering.
                    These financials are clear: this is not a golf business, it’s a money disappearing business.

                    1. I see a lot of speculation in that Twitter thread by anti-Trump people on what the financials *could* mean, but with that speculation also being disputed by other accountants. Oh, and there’s you trying to pretend that you understand any of it.

                2. The biggest revelation was the extent of his dishonesty rather than the fact of his dishonesty.

                  1. Can you be specific about what dishonesty with regard to his taxes that you’re referring to? And I mean be specific. Don’t just parrot some vague nonsense about debts to show us that you don’t understand how debt is employed in real estate and similar business.

                    1. Since your definition of dishonesty seems to be different from just about everyone else’s here, before I answer your question perhaps you could tell me what you consider dishonest. Because based on your other comments on this thread, it’s not clear that your understanding of the word matches most people’s understanding.

                      And since I’ve spent most of the last 40 years employed by or representing major corporations, I do in fact understand how debt is employed. And if you think that what we see on Trump’s taxes anywhere remotely resembles those types of business financial practices, you’re, um, mistaken. Yes, mistaken is the word I want.

            2. Stephen:

              Because this country was founded by imbeciles whose central concern was making sure nobody would prevent them from raping their slaves, majoritarianism is not actually possible.

              The Senate and electoral college, neither of which are going anywhere, incentivize the sort of Republican Party you dislike. (They also create incentives that change the Democratic Party as well.)

              1. Because this country was founded by imbeciles whose central concern was making sure nobody would prevent them from raping their slaves

                Are you trying to impress Kirkland or something?

                1. I think a lot of mistakes about our structure of government are a product of what you might for a lack a better term call framer worship. Conservatives do this when they talk about all the anti-democratic stuff that the framers said (summed up in the phrase “we’re a Republic, not a democracy”), and liberals do this when they portray the framers as engaged in some great experiment to create a democratic government where the people were sovereign (which is not an accurate description of any government, but is certainly not an accurate description of an expansionist keptocracy created by some white property owners whose idea of “liberty” involved owning slaves and killing Indians).

                  We have the institutions we have in this country because the point wasn’t to create some beacon of liberty and light upon the world- it was to create something that would hold together while protecting the stuff the framers- a pretty bad crowd- were interested in protecting. Understanding that is crucial for understanding why our country’s system works the way it does.

        2. That you think the stock market crashing as a result of Biden’s election is a “reasonable” prediction is just one reason why you’re so awful.

          1. If it were true that a Biden election would crash the stock market, it would already be apparent as it seems to everyone not in the thrall of Q that a Biden election is much more probable than not. But, it’s not a done deal. Everyone who disfavors Trump and is legally eligible needs to take this seriously and make sure to either get their ballot in on time or get out and vote in person. Chickens, Baby, chickens.

          2. That you think the stock market crashing as a result of Biden’s election is a “reasonable” prediction is just one reason why you’re so awful.

            I can’t wait to hear your take on Krugman.

        3. I’ll just note that it is the GOP which is trying to stifle votes that might go against Trump. Not to mention continuing to try to screw up the Census to its own benefit.

          “Every accusation is a confession.”

    2. loki13 : It’s almost funny that the usual suspects were so worried about a Clinton Presidency in 2016

      If you really want funny, don’t stop there…..

      (1) A massive segment of Trump supporters rejected Ms Clinton because she’s a “liar”. Does irony get anymore ludicrous than that? Trump lies more in a typical month than Clinton in her worst decade.

      (2) “But Clinton is crooked” was another reason given by Trump’s supporters.. Thus they gave their vote to a two-bit grifter conman who’s left a trail of slime behind him his entire life.

      Yesterday there was a news story on legal proceeding records that backed Mary Trump’s account of DJT and his father’s will. This happened : Trump was deeply in debt from all his bungled nonsense with casinos & airlines, so tried to hijack his father’s will. He had a new document drawn-up and then went to Fred’s bedside, where his father lay sick, weak, and suffering from early-stage dementia. His own mother intervened to stop Trump; the new will would have given him control of everything.

      The man tried to steal from his own family by strong-arming a sick father. That’s the worthless piece of shit he is….

      (3) But here’s still more: There were actually people who voted for Trump because he was a “successful businessman” who could bring vigor, clarity & focus into the White House. Maybe those voters were the biggest fools of all. They got a president whose entire business career has been devoted to squandering his daddy’s fortune. They got a man who has the attention span of a toddler, all the intelligence of a box of rocks, and the self-discipline of a full kindergarten playroom when the teacher has stepped out of class.

      1. Pop quiz:

        A) How much of his father’s fortune did Trump inherit?

        B) What was his average estimated personal net worth in 2017? Or today, even?

        1. (1). Donald Trump received at least $413 million (2018 prices) from his father’s business empire, the New York Times reported in 2018. The Times drew upon more than 100,000 pages of tax returns and financial records from Fred Trump’s businesses and interviews with former advisers and employees, finding 295 distinct streams of revenue that Fred Trump created over five decades in order to channel his wealth to his son. Donald Trump was already a millionaire by age 8.

          (2) A 2016 analysis of Trump’s business career in The Economist concluded that his performance since 1985 had been “mediocre compared with the stock market and property in New York”. A subsequent analysis in The Washington Post similarly noted that Trump’s estimated net worth of $100 million in 1978 would have increased to $6 billion by 2016 if he had invested it in a typical retirement fund.

          I’m not sure you can claim to be a business genius if you get lapped by the local corner office of Charles Schwab. Oh well, he’s always got a very stable genius to fall back on, eh? Not everyone could ace that Person, woman, man, camera, TV Test.

          1. I see you and Sarcastr0 are reading from the same bob-and-weave hymnal, and neither of you had the guts or sense of honesty to actually answer the questions. And even in your attempt to pretend you were answering the first question, you used an inflation-adjusted version of what he received rather than the actual amount to make it sound like he started off with a lot more than he actually did.

            So…he was worth ~$100 million or so in 1978, and had a net worth of just over $3 billion pre-Covid (the question you couldn’t muster up the courage to answer). That’s an average annual return rate of return of about 9.5%….and that’s assuming every nickel remained invested at all times earning a return. Not stellar, but not “squandering his daddy’s fortune”. Is he a business whiz as he likes to boast? No. But he didn’t blow his inheritance either.

            1. You’re neglecting the fact that he also had, probably, about $800 million of government subsidies — about $400 million for Trump Tower alone. Then, consider the fact that he has drained cash flow from every business that he has ever run. Essentially, he has embezzled from his own enterprises, laundered the money, and insulated himself personally from his business bankruptcies, with the assistance of people like Wilbur Ross, who facilitated favorable for Trump settlements in his business bankruptcies. Look into what happened with the Trump investments in Chicago Trump borrowed money from Deutsche bank of which he was personally responsible for about $60 million. Bad investment and it turned south. Trump, the self proclaimed billionare couldn’t meet the obligation, a measly $60 million. So, Trump claimed that God was responsible for his bad investment and threatened to sue Deutsche Bank. Deutsche Bank rolled over. What? How, exactly, does that work? No bank takes it in the shorts without getting something in return–banks play with a stacked deck. Then, consider the fact that Trump is probably worth much less than $3 billion, maybe much, much less.

              Trump claims to be a business whiz, but the truth is that he’s not a businessman at all. And, to the extent that he’s been involved in business, rather than being the host of a rigged game show where he pretends to be a businessman, much as Mr Ed pretends to be a talking horse’s ass, he’s been a bad businessman. Truth is, he’s a fat f’ing four flusher who just flunked out in a fair fight.

        2. (1984-1991) — Trump goes crazy, borrowing huge sums to overpay for airlines, football teams, the Trump Plaza hotel, and casinos in Atlantic City. It all ends in 1991 when the Trump Organization goes bankrupt.

          (1992-1999) — Trump digs his way out of bankruptcy, helped along by hundreds of millions of dollars funneled to him by his father. This is also the phase in which he packages most of his bad casino debt into a single company that he takes public. Trump pays himself millions of dollars for managing this business, but anyone who invested in it loses every penny.

          1. It all ends in 1991 when the Trump Organization goes bankrupt.

            Uh, no. First off, there is not (nor was there) any “Trump Organization”, let alone one that went bankrupt. There were six individual businesses Trump controlled that filed for Chapter 11 protection, only one of which (Taj Mahal) was in 1991. The other five were spread out over the next 19 years.

            You have no idea what you’re talking about, and are just repeating talking points you’ve heard from someone else.

            1. Donald Trump had a publicly traded, on the NYSE, corporation engaged in the “gaming” industry. The NYSE symbol was DJT, imagine that. During the time that DJT was in existence, every other player in the “gaming” industry made boatloads of money. And, why would they not, as there is an endless supply of people with money who can’t do maths. Suckers born every minute and all. DJT went teats up and shareholders lost everything, or close to it. How did that happen, exactly?

              Yes, we all are repeating [] points that we’ve learned somewhere else, including you. It’s just that not all of us are as gullible as a Russian bot.

              1. So it was “a” Trump Organization, not “the” Trump organization.

  8. In 2016, the Senate Majority Leader, acting for his caucus, and the chair of the Senate Judiciary Committee, jointly decided that it would be a waste of the Committee and full Senate’s time to hold hearings upon, or advance to the floor for debate and vote, a nomination by President Obama during 2016. Irrespective of the nominee’s merit, there was undoubtedly a substantial group of GOP senators who would filibuster any nominee by President Obama to fill the seat vacated by Justice Scalia’s death, which would have flipped the composition of the Court.

    Unless you can name, Prof. Post, the fourteen GOP senators who, in these circumstances, would have defied party discipline in a whipped vote and joined the 56 members of the Democrat caucus in supporting cloture, then you should acknowledge the further political reality: The only thing that President Obama, Judge Garland, the Democratic Party, or the supporters of any of them were deprived of in 2016 was the chance for Democratic senators on the Judiciary Committee to preen and grandstand on TV, and then the chance for the full Democratic caucus to lose, badly, a cloture vote that would have ended the nomination. In giving us your list of fourteen names, please consider this, from the New York Times on April 2, 2016:

    The wall of Republican opposition to the nomination of Judge Merrick B. Garland to the Supreme Court has been shored up by two Republican senators revoking their support for holding confirmation hearings.


    As the White House heralds the growing number of Republicans agreeing to meet with Judge Garland, Senators Jerry Moran of Kansas and Lisa Murkowski of Alaska have reversed themselves and say they now back the decision made by Senator Charles E. Grassley of Iowa, chairman of the Judiciary Committee, not to hold hearings.

    I look forward to reading your list, or your acknowledgement of political reality.

    1. “Irrespective of the nominee’s merit, there was undoubtedly a substantial group of GOP senators who would filibuster any nominee by President Obama…”

      This is just bad fan-fiction. Why would Republicans need to filibuster the nomination? They had a majority of the Senate. The only explanation for a filibuster is that enough Republicans would defect and vote for Garland to approve the nomination, but not enough to overrule a filibuster. But if that’s the case, that means a majority of the people’s representatives in the Senate supported Garland’s nomination. And that being the case, the Republicans would have had to expend political capital to filibuster a popular nominee.

      The political reality is that Republicans took advantage of the situation, and the American public, to avoid the consequences of the normal machinations of government. If they had the courage of their convictions, they would have held hearings and just voted Garland down. But they were scared he would come out of the hearings looking like a qualified candidate, and then they’d have to go on record as partisan phonies opposing a qualified judicial candidate.

      1. FWIW, I think the arguments about “political capital” are pretty much fiction.

        Yes, obviously, McConnell chose a route that protected his members from taking a tough vote. But that wasn’t the only reason he chose that route- if they vote down Garland after some perfunctory performance art hearings, or even no hearings at all (which is constitutionally preferable- congressional hearings are completely stupid), then you get another nominee and you have to do it again.

        At any rate, the idea that there would be enough defectors in the Republican caucus to allow his confirmation is silly. Indeed, if you were McConnell, a filibuster might have actually been preferable as it would allow more of your Senators to pretend to vote yes, and the Democrats would complain of that as well.

        The reality is the Senate majority has a ton of power in judicial confirmations. The theater and hypocrisy are absolutely stupid ways that we avoid debating the real issues (rhymes with smashmortion) on the merits like we should.

        1. “Indeed, if you were McConnell, a filibuster might have actually been preferable as it would allow more of your Senators to pretend to vote yes, and the Democrats would complain of that as well.”

          McConnell disagreed, as he had that option available and chose another. The problem (for him) with hearings and/or a vote is that the American people might have found Garland qualified and supported approval of him (just as a majority supported hearings). McConnell knew he had to avoid it, but couldn’t be honest about why. There were plenty of plausible reasons to deny the vote. Naked power. Scalia cannot be replaced by a Garland from conservatives’ perspective, and conservatives are better people than majority will, and abortion is wrong. Guns. Whatever. But you can’t submit ideas to the court of public opinion if you avoid the discussion entirely by making up a fake one.

          Poo poo political capital all you want. It’s just a fancy way of discussing people who are political cowards and don’t want to go on record as saying or doing what they really want. The feedback mechanism for Americans to advance civic interests are elections, and those elections depend on politicians not doing what McConnell did. It should be disqualifying for him forever. That doesn’t mean he should be replaced by a Democrat, but he should be replaced in Republican leadership, and he should get primaried. Nobody with as little respect for democracy as him should be in a leadership position in any democracy.

          1. NToJ: May we take it from your silence on my original question that you cannot name 14 plausible GOP flippers?

            Or are you avoiding that discussion?

          2. McConnell disagreed, as he had that option available and chose another. The problem (for him) with hearings and/or a vote

            Another option was to have no hearings and a vote. There’s nothing that requires hearings.

            But you can’t submit ideas to the court of public opinion if you avoid the discussion entirely by making up a fake one.

            The problem with this position is that it only works if the Democrats are also avoiding the real discussion. Which they are.

            Someone needs to come out and say something like “I favor abortion rights, and I am voting against nominees who I think will roll them back.”

            When you have political opponents who are just as interested in avoiding substantive discussion as you are, it makes McConnell’s job easier.

            The feedback mechanism for Americans to advance civic interests are elections, and those elections depend on politicians not doing what McConnell did.

            I don’t believe this at all. The Democrats are free to run on “we want abortion rights, they don’t, so if you want the sort of court nominees that protect abortion rights, vote for us”. The Republicans are free to run on the reverse too.

      2. They would obviously filibuster in order to prevent a vote. That’s how filibusters work, NToJ.

        NOTE: I did not argue that if a vote were held, then-Chief Judge Garland had no possibility of winning it. Getting four cross-overs on a merits vote is obviously an easier task than getting fourteen for cloture.

        But, respectfully, it’s crazy NOT to think that any Obama nomination would not have been filibustered in 2016, especially one for the seat being vacated by Scalia.

    2. Assuming that the Republicans all supported Mitch, then the Garland nomination would have failed had it been put to a vote.

      Assuming that at least some Republicans favor country over party, Garland gets confirmed.

      which assumption is more foolish?

      1. To get to a vote, you have to get past a filibuster. That was the rule in 2016.

        So: Mr. Pollock, can you name the 14 GOP senators who might plausibly have flipped, and joined the 46 members of the Dem caucus (44 Dems + 2 Inds) to get to 60 for cloture?

        Names and arithmetic, sir: That’s the essence of politics in the Congress.

        This was all entirely obvious, from the moment Scalia died. Garland, at 63, was never a serious pick; he was the oldest nominee since Nixon picked Lewis F. Powell, Jr, at 64, in 1971; and modern POTUSes of both parties now more shrewdly spend their few picks on much younger judges. Then-Chief Judge Garland was the 10th most powerful judge in the country, but his realistic chance of ever being a serious nominee, i.e., one who had a realistic political shot at confirmation, disappeared in the Bush-43 years. (Compare Justice Kavanaugh, deliberately appointed by Bush-43 in anticipation of later SCOTUS consideration while still relatively young; had Chief Judge Garland been elevated, Kavanaugh was next in line for chief judge based on his D.C. Circuit seniority.)

        Friends and neighbors, those who contend “we wuz wronged” of the gnome underpants variety. There’s a link missing from their causal chain, a really vital one. When they ignore that, they are engaging in magical thinking. Those who claim that Martyred Judge Merrick was robbed of a seat on the SCOTUS are ignoring their pocket Constitutions, there being that obligation for Senate consent, and there having been zero chance of that under the political circumstances of the U.S. Senate in 2016: Names and arithmetic.

        Is that raw majoritarian politics? Damned straight. Just ask Harry Reid, if you can hear him through the grit of the whirlwind he sowed.

        1. Sigh. Apologies for an editing error in the next to last paragraph above. I’ll trust the gist of what I was saying to still be apparent through that jumble of clauses that didn’t quite connect up.

    3. This is crazy enough that I don’t know where to begin.
      You write: Irrespective of the nominee’s merit, there was undoubtedly a substantial group of GOP senators who would filibuster any nominee by President Obama to fill the seat vacated by Justice Scalia’s death,
      Yes, but WHY would they filibuster any nominee Obama put forward? What reason do they give for acting that way. If McConnell had said: “I’ve got a bunch or recalcitrant jackasses in my caucus who, for no good reason, are going to filibuster every nominee you put forward,” I guess I would have sympathized with him. If the reason was “letting the people decide in an election year,” then they are being unbelievably, stink-in-the nostrils hypocrites in 2020. If the reason was “we are partisan hacks and will not ever approve a Democratic nominee,” then they are being partisan hacks. It’s as though you’re excusing their being partisan hacks by saying that they’re partisan hacks.

      1. Yes, but WHY would they filibuster any nominee Obama put forward? What reason do they give for acting that way.

        Why does it matter? They had the votes. Therefore no confirmation.

        Why are you looking for a principle in politics? They don’t exist. Rational actors pursue maximum advantage.

        1. 1) Maximum advantage includes what the public will think.

          2) Humans are not rational actors. Otherwise why no court packing yet? Why no infinite filibusters?

          In my view the incentives have not changed much, at least on an institutional level. But the *principles* have.

        2. Why are you looking for a principle in politics? They don’t exist. Rational actors pursue maximum advantage.

          I mean, that’s just not correct, except in a single shot game. In a repeated game, rational actors take into account how their conduct will affect their opponents’ conduct down the road.

          1. That’s quite true, but it isn’t principle. It’s just playing the game for long term advantage.

        3. I asked: Yes, but WHY would they filibuster any nominee Obama put forward? What reason do they give for acting that way.
          Dilan Esper wrote:
          Why does it matter? They had the votes. Therefore no confirmation.
          Why are you looking for a principle in politics? They don’t exist. Rational actors pursue maximum advantage.

          This is both incorrect factually and catastrophic normatively. Why does it matter? Because there are no principles in politics, we are all at the mercy of force and lawlessness, and the ones who have the biggest and strongest weapons will prevail, that’s why it matters. And the notion that there are no, and have never been, an politicians with principles is ridiculous. Let’s start with the Presidents, chronologically: Washington had principles. Jefferson had principles. Madison had principles. [All, by the way, very gifted politicians]. Lincoln. Teddy Roosevelt. Hoover. FDR. Eisenhower … Reagan . . . Obama. And those just the presidents. I could go on. It is simply willful blindness to say otherwise, an excuse for those who in fact have no principles to do any damn thing they want. I’ll tell you who has no principles: Mitch McConnell and Donald Trump. Could you add some Democrats to that list? Absolutely. They should all be hounded from office.

          1. The real question is “could you add some Democrats” to the list of politicians with no principles. Well, can you, Prof. Post?

          2. May I take it from your silence on the question I put to you, Prof. Post, that you are unable to name 14 GOP senators from 2016 who likely would have joined the 46 members of the Democratic caucus to invoke cloture?

            1. He can’t even name a single unprincipled Democrat.

            2. I’ll spot you the first two: Collins (R-ME) and Kirk (R-IL). It’s reasonable to assume they would have voted to invoke cloture and end debate, permitting an up or down merits vote, as an extension of their public position that then-Chief Judge Garland ought to get a hearing in the Judiciary Committee.

              Two other possibilities, as the NYT article I linked and quoted, might have been Moran (R-Kansas) and Murkowski (R-AK). But as that article reports, they moved back into line with the position of the Majority Leader and the chair of the Judiciary Committee, not further into dissent. It would, I submit, be intellectually dishonest to suggest that they’d have tacked 180 degree again to vote for cloture.

              Your response seems to be, in effect, that these partisan senators — whom you characterize as “hacks” but whom I would characterize as correctly reflecting their constituents preferences — would be acting in a very partisan way to take advantage of the then-still-existing filibuster rule for SCOTUS nominations. Yes, you think they should all be sent home by the voters. And indeed, Dems who were outraged by the treatment of Chief Judge Garland argued in the 2016 election that voters should do exactly that.

              But the voters returned, or sent, enough GOP senators back to the 115th Congress (2017-2019) for the GOP to retain its majority.

              I understand that you feel very passionately about this! So do I, although my passions run in the opposite direction. Let’s so stipulate to that.

              Passions aside, though, can you fault my math? Or come up with the dozen names besides Collins & Kirk?

              1. Prof. Post wrote, while not listing 14 GOP senators who’d likely have voted for cloture and 4 who’d likely have then voted to confirm:

                If the reason was “letting the people decide in an election year,” then they are being unbelievably, stink-in-the nostrils hypocrites in 2020. If the reason was “we are partisan hacks and will not ever approve a Democratic nominee,” then they are being partisan hacks. It’s as though you’re excusing their being partisan hacks by saying that they’re partisan hacks.

                And yet there was no filibuster of Judge Sotomayor as the replacement for Justice Souter, nor of Dean Kagan as the replacement for Justice Stevens. Let’s do the Sesame Street game, and ask ourselves: “What is it that is alike about all four of these names?” It’s obviously not the party of the POTUS who appointed them, since Sotomayor and Kagan were appointees of a Democrat president and Souter and Stevens of Republican presidents. Maybe it’s whether they Souter and Stevens were fairly reliable members of the Court’s liberal voting block, and Sotomayor and Kagan could be predicted to also be reliable members of that same block (as, indeed, they’ve generally turned out to be).

                Garland would have flipped the SCOTUS. I don’t know how you can blink that obvious reality and pretend that it, and the impending election, weren’t together driving the GOP’s position.

                1. Let the record reflect:

                  Prof. Post had no answer.

          3. This is both incorrect factually and catastrophic normatively.

            If you really believe that this is catastrophic normatively, then basically you believe in a sort of purist politics that can never exist.

            The fact that political parties pursue maximum advantage is just that, a fact. It’s not a normative claim, at all. It is as much as fact as the sun coming up tomorrow morning.

            Any political theory that pretends that politicians will act for the common good is doomed to fail. That’s now how politicians act. The way good political systems work is to sometimes align the common good with politicians’ desire for power, status, and riches. And to create incentives to get politicians to think about long-term self-interest as well as short-term self-interest.

            Washington had principles. Jefferson had principles. Madison had principles.

            No they didn’t, unless you consider “how can I ensure that the system ensures I can continue to rape my slaves” is a principle.

            ALL politicians act from self-interest. What you call “principles” is simply nothing more than a recognition that sometimes you don’t get maximum advantage from being a maximal bully. But no, none of those people had actual principles.

          4. Post : Yes, but WHY would they filibuster any nominee Obama put forward?

            Obama filibustered Alito in 2006, on purely ideological grounds.

            TIT FOR TAT

  9. If the Democrats were just saying “You said this then, so you have to live with it,” then I’d agree it wasn’t hypocritical. But they’re not. They’re giving all the reasons that they personally dismissed before as to why it’s not appropriate to vote now, when the only thing that’s changed is who’s doing the nominating. It’s fine to say “you made your bed, now lie in it,” but moving beyond that can still be hypocritical even if that’s where your argument started.

    1. It’s all different because … Democrats.

      1. As opposed to Post’s post that it’s all different because… Republicans/orangmanbad?

        lol. It’s hypocrits all the way down.

    2. Provide the Democrat version of the Appendix above so we can evaluate whether your claims are true. Which Democrats are saying what you say they are saying?

    3. “They’re giving all the reasons that they personally dismissed before as to why it’s not appropriate to vote now, when the only thing that’s changed is who’s doing the nominating. ”

      That’s not the only thing that changed. In 2020, the events of 2016 are set. The McConnell Rule was announced and acted upon.

    4. KenveeB: They’re giving all the reasons that they personally dismissed before as to why it’s not appropriate to vote now, when the only thing that’s changed is who’s doing the nominating.
      You’re missing my point. That is most definitely NOT the only thing that has changed. What changed was that the Republicans got their way in 2016. They won the argument. Good for them. So the world is different now. They declared a principle and acted on it, so now we live in a world, thanks to them, where the Senate puts off nominating fights in a presidential election. Except when they’re the ones doing the nominating.

  10. Bah. “46 members of the Democratic caucus,” that ought to have read, not 56. Apologies for the typo.

  11. But Debby Democrat got caught trying to use loaded dice, and THAT changed the rules.

    Every existing rule was violated by the “because we can” Impeachment — no one wants to say it, but there no longer are rules beyond bare naked power.

    1. And that’s Dr. Ed for ya!

      Tell me more about how everything changed because something something 1963 Maine.

      1. Obaba wasn’t impeached because of “the rules.”
        Notwithstanding the same “rules”, Trump was.
        And now the Republicans are saying “what ‘rules’?”

        And as to Maine, where was the Dem outcry over the Ricin scare letter sent to Susan Collin’s home? So much for “rules.”

        1. Obama wasn’t impeached because no impeachable acts.
          Trump was because he did.
          And, you forgot, Clinton impeached because Newt wanted it so very badly.

          “where was the Dem outcry over the Ricin scare letter sent to Susan Collin’s home?”

          Conversely, where was the Dem cries of support to the prankster?

          1. Impeachable acts are whatever acts one can get enough support to win the vote. High crimes and misdemeanors are whatever Congress says they are, or does that only apply to orangemanbad?

            1. But Congress has norms. And the polity pays attention enough they worry about that still.

              Which is why you have this whole naked hypocrisy in the first place.

            2. Yeah, but using American foreign policy exclusively for personal gain goes a long way to satisfying the requirement. Particularly when that so-called “foreign policy” is being channeled thru your burnt-out husk of a private attorney and his two low-grade crook henchmen.

              Trump spent over a year trying to bribe or extort personal benefit from the Ukrainian government. His first approach was to the current president’s predecessor and – yes – was made thru the three stooges : Rudy Giuliani, Lev Parnas and Igor Fruman. Do you want a high ranking official at your government’s inauguration? The cost is help my campaign. Do you want a summit between our two country’s leaders? The cost is help my campaign. You want that military aid already voted by Congress? The cost is help my campaign. At one point the Ukrainians were told Zelensky had to sign a piece of paper committing to the public announcement of an investigation targeting Biden. It had to be Zelensky himself before the cameras or no deal.

              This was the meeting where Bolton stormed out, yelling he wasn’t going to be part of any drug deal.

            3. Were you trying to make a point, other than orangemanbad?

  12. The premise of this post is flawed. Many Democrats (I don’t have the time to count them up to say “most”) argued that the Senate was required by the Constitution to act on the Garland nomination (whether by holding hearings, conducting a vote, or otherwise). The argument was not that the Senate “should” vote on Garland; the argument was that the Senate “must” vote on Garland. And that it must do so to fulfill a constitutional obligation. I disagree with that argument, but it was made.

    The Constitution, of course, has not been amended since then. So if the Constitution required Senate action then, it must require Senate action now. To argue otherwise would be hypocritical.

    To be clear, the Republicans are also hypocrites here. But this is, indeed, a two-way street. Ilya Somin has skillfully captured the two-sided hypocrisy in judicial confirmations in posts on this blog in the past.

    For a useful compilation of statements then and now by Democratic Senators, see below:

    1. Didn’t bother reading the post.

      1. Sorry I did. I will never be able to recover the wasted time.

    2. Your argument: Democrats in 2016 argued that it was constitutionally required to vote on Garland, but now they have changed course. Link says:

      Doug Jones could not have made that constitutional argument in 2016 because he was not a Senator, then.

      Krysten Sinema could not have made that constitutional argument in 2016 because she was not a Senator, then. In any event, she doesn’t have a stated position (per the link) on current nominee.

      Dianne Feinstein’s argument was not that the Senate was constitutionally required to have a vote, but that the “Senate” should “do its own job and fully and fairly consider the nominee.” Her stance today? “There cannot be one set of rules for a Republican president and one set for a Democratic president[.]” That’s the exact argument David Post makes above.

      Kamala Harris, not a senator in 2016.

      Michael Bennett did make the “constitutional responsibility” argument but that’s not quite the same as saying it is constitutionally required. Rather, he noted that was “what presidents and the Senate have done throughout our history.” That’s a historical norms argument, and the changed position can be justified (per Post) on the changed history and norm.

      Richard Blumenthal, not a constitutional argument, just ordinary unprecedented obstructionism argument.

      Chris Murphy, not a constitutional requirement, but rather “spirit of that sworn oath”. Now? “The precedent Republicans set in 2016 requires the Senate to wait…” Same argument Post identifies above.

    3. Tom Carper, normal “unprecedented” argument, with a constitutional sprinkling “abdication of this duty is a failure to serve the American people”. Now his position? “If my Republican colleagues reverse course … and try to fill this vacancy before the next president is sworn in, it would be hypocrisy of the highest order.”

      Chris Coons, no constitutional argument expressly, just “do our jobs”. He’s distinguished (poorly, in my view) the two cases on the basis of proximity; 44 days is closer than 10 months from an election. He’s also making the hypocrisy argument.

      Brian Schatz, not exclusively a constitutional argument, says it is “time to end the political gamesmanship and do the job that the American people elected us to do.”

      Mazie Hirono, normal “unprecedented” argument. Doesn’t mention constitution at all.

      Dick Durbin, “No Senate has ever denied a hearing to a presidential nominee o fill a Supreme Court vacancy.” Now? “There cannot be one set of rules for a Republican president and one set for a Democratic president[.]”

      Tammy Duckworth not a Senator in 2016.


      1. Like I said, not all Democrats framed it as an obligation. But many did. (Of course, other statements not captured in the link may also have been framed in terms of an obligation to act on Garland.)

        Michael Bennett, Colo. – “… constitutional responsibility.”

        Chris Murphy, Conn. – “When each one of us took the oath of office, we swore to support and defend the Constitution and to faithfully discharge the duties of a Senator. If Senate Republicans refuse to consider the president’s nominee, they will be willingly violating the spirit of that sworn oath.”

        Tom Carper, Del. – “Each of us has taken an oath to uphold the Constitution – some of us many times over – and any abdication of this duty is a failure to serve the American people as we’ve been elected to do.”

        Brian Schatz, Haw. – “We now must get back to the business of governing, fulfill our constitutional obligation, and restore the Supreme Court to its full strength.”

        Mazie Hirono, Haw. – “In my view, this law is violated when Senate Republicans say that it’s ok to leave a vacancy unfilled for over a year.” Yes, she is talking about a statutory duty and not a constitutional duty; but she’s saying it’s a legal duty nonetheless.

        Dick Durbin, Ill. – “The president has fulfilled his constitutional responsibility and now the U.S. Senate must do the same.” Not “should,” as Post frames his argument, but “must.”

        Ben Cardin, Mary. – “It is now necessary for the Senate to fulfill its constitutional responsibility to consider the nomination through a fair hearing and a thoughtful floor debate before a timely vote of the full Senate.”

        Ed Markey, Mass. – “Senate Republicans are engaged in the worst kind of partisan obstruction by ignoring their Constitutional duty to act on Judge Garland’s nomination.”

        Debbie Stabenow, Mich. – “The Senate has a Constitutional duty to provide advice and consent on Judge Garland’s nomination through a fair confirmation process.”

        Amy Klobuchar, Minn. – “The Constitution is clear: The Senate must consider the president’s nominee and then choose whether to vote ‘yes’ or ‘no.’”

        Jeanne Shaheen, N.H. – “The Constitution is clear on the Senate’s obligation in the event of a vacancy on the court and it’s time for the Republican majority to schedule hearings and a vote.”

        Bob Menendez, N.J. – “The Senate has a Constitutional duty to consider the president’s nomination.”

        Cory Booker, N.J. – “My Senate colleagues must fulfill their constitutional duty and do the same.”

        Tom Udall, N.M. – “The Constitution is clear. The Senate shall offer its advice and consent.”

        Jeff Merkley. Ore. – “It’s time for the Senate to fulfill our own constitutional obligation to provide advice and consent.”

        Sheldon Whitehouse, R.I. – “I urge my colleagues across the aisle to honor their constitutional duty and act on this nomination.”

        Mark Warner, Virg. – “I strongly urge my colleagues to respect the process and hope that they will allow the Senate to perform its constitutional duty to consider Judge Garland’s nomination.”

        Tim Kaine, Virg. – “I commend President Obama for fulfilling his constitutional duty. It’s time for the Senate to do the same.”

        Maria Cantwell, Wash. – “Advice and consent isn’t an option, it’s an obligation.”

        Joe Manchin, W.Va. – “I believe the Senate should once again follow its constitutional obligation and advise and consent on the president’s nomination.”

        1. Note the argument started as many Senate Democrats saying it “was required by the Constitution” but now you concede less than half of them merely “framed it as an obligation”.

          From your list, the only ones I see who could meet the “was required by the Constitution” to vote argument are: Schatz, Markey, Klobuchar, Shaheen, and Cantwell. Five. Even of those, Schatz’s full statement suggests he’s arguing against “political gamesmanship” and is not making an explicit constitutional argument about what the Senate is required to do. Same with Markey. Per your article, Cantwell hasn’t made a statement on the current nominee yet, so it’s premature to call her a hypocrite. That leaves you with Klobuchar and Shaheen. “many”.

          1. Requirement and obligation are synonyms.

            Everyone of the Senators I quoted made a statement that Constitution imposes an obligation for the Senate to act on the Garland. I count 20.

            I’m not going to engage in further pedantry with you over whether “obligation” is consistent with “requirement” or “duty.”

            1. If you were so confident in your original argument, why did you respond by selectively omitting the parts of the quotes that don’t support your position?

    4. ” I disagree with that argument, but it was made.”

      Mitch wasn’t persuaded. Until this year.

    5. I disagree. To begin with, it is hardly hypocritical to say “We think the Constitution requires the Senate to hold hearings and to evaluate a nominee on the merits, even if the nomination comes NINE MONTHS BEFORE AN ELECTION; but not when it occurs FIVE WEEKS BEFORE AN ELECTION.”
      But putting that aside, you’re missing the point of the O.P. The Red Team rejected the argument that they had to hold hearings and evaluate a nominee on the merits. So now they’re like Robbie Republican – they’re acting in bad faith when they throw the Democrats’ comments from 2016 back in their face, having rejected those very views.

      1. I’m not defending Republicans. I am saying that the premise of the post–that Democrats argued that the Senate “should” act on Garland–is incorrect. Some, maybe even many, argued in terms of “should.” But numerous Democratic Senators (quoted above)–and their ideological brethren–framed it in terms of a constitutional obligation (or in Hirono’s telling, a statutory obligation).

        If the Constitution imposes an obligation (and, again, I don’t think it does), then the obligation exists “NINE MONTHS BEFORE AN ELECTION” or “FIVE WEEKS BEFORE AN ELECTION.”

        The Constitution didn’t change. These Senators’ reading of the Constitution changed due to political expediency. That’s hypocrisy.

        1. “The Constitution didn’t change. These Senators’ reading of the Constitution changed due to political expediency. ”

          Mitch pulled a fait accompli, and opinions changed in response. Only Republicans fail to change their positions to account for reality.

          1. That’s a fine argument for why it is not hypocritical for Senator XYZ to oppose confirmation proceedings now despite saying in 2016 that “we should move forward on Garland” or “there’s no precedent saying we shouldn’t move forward on Garland.”

            But numerous Senators and those who agreed with them in 2016 grounded their argument on supposed constitutional duties. You can’t cite a constitutional duty to proceed in 2016 and then oppose proceedings in 2020 unless: (a) the Constitution has changed (which it has not); or (b) your reading or understanding of the Constitution has changed.

            Again, someone could be principled in saying that the rules changed when McConnell made his move. But McConnell’s move cannot negate a constitutional duty.

        2. “I’m not defending Republicans.”

          Who do you think you are fooling? You, or us?

          Because it’s not us.

        3. kkoshkin — Nine months is fine? Five weeks is fine? How about 1 week? How about three days?

          You are not resolving a debate on principle. You are drawing a line, and putting it where you prefer. Others disagree.

          1. I was merely quoting Prof. Post’s response back to me.

          2. He’s also pretending that an obligation and a requirement are the same thing. They are not. For example, I’d say that house members have an obligation to refrain from caning senators on the senate floor. Clearly, it’s not a requirement. Presidents, and their toadies, lackies, sycophants, and ass kissers are obliged, one would think, to refrain from the behavior described above by grb. But, Republicans in the senate have decided it is not a requirement. But wait! There’s more!

            1. I’d say that house members have an obligation to refrain from caning senators on the senate floor. Clearly, it’s not a requirement.

              You don’t think there is a legal requirement to refrain from committing assault?

              1. No surprise you missed the point. A joke’s not much fun if you have to explain it to the punters.

              2. “You don’t think there is a legal requirement to refrain from committing assault?”

                A footnote:
                Brooks suffered no serious legal repercussion, his fine for crippling, and nearly killing, Sumner being much less than the value of one of Brooks’s slave mistresses. There is evidence of the existence of God, in this story, however. In less than a year, Brooks was called home as a result of an upper lung infection. It was said of Brooks, “He died a horrid death, and suffered intensely. He endeavored to tear his own throat open to get breath.”

                Good people on both sides? Not so much.

  13. The latest argument seems to be that if you have the power to do something, it’s legitimate and has the mandate of the voters. Never mind current polling, nor the undemocratic nature of the Senate.

    1. Latest? This goes back a long way. Bork was in 1987. The Senate can choose not to confirm. There is no requirement they even hear it. Senate Democrats have stalled many judicial picks over the decades. They play the fool now because they know they lost and have no more arrows.

      1. Lets go back to Fortas! Oh wait, liberals have accepted that ended up being legitimate.

        Bork got a vote, a bipartisan group voted him down. But conservatives can’t allow anything to be legitimate.

        This is new ground, and no amount of right-wing smoke blowing will change how clear that is.

      2. “The Senate can choose not to confirm.”

        The Senate can. But in 2016, they weren’t given that option. Or any other.

      3. ” They play the fool now because they know they lost and have no more arrows.”

        Or because they know that as soon as they control the Senate again, they’ll have 4 new openings to fill.

    2. Yep.

      Which is why, if this goes through, we will probably see an expansion of the Supreme Court.

      It’s game theory now, and it will be responded to.

      1. And then Trump comes back in 2024 and expands SOTUS to 50 justices…

        1. If the President loses this election he will lose the party, too.

        2. Trump’s Second Coming?

          Man, your imagination is running thin…

          1. Well, there was this time at UMAss when Dr. Ed stood up to the entire faculty and devastated them with his command of law, history, and quantum physics, but Che Guevara was the dean and then something happened in Maine and …

            1. HIPPA! A cop friend of his told him! FAPE! It was in a newspaper that’s no longer in business! FERPA!

        3. If Trump comes back after

          1) the House is enlarged (and with it the Electoral College)

          2) senators from new states arrivate

          3) Republican gerrymandering subsides (or is replaced by Democratic redistricting maps)

          4) the electorate continues to become less White, less rural, less religious, less bigoted, etc. . .

          5) his tax problems are addressed

          6) the fraud investigations develop

          that would be a miracle.

      2. It has been game theory all along. What has changed is that Democrats have decided to end the repeat game when they get their next turn.

        1. Do you have any evidence at all for this theory that the Democrats are engaged in a dark plot to undermine democracy?

          1. Biden’s TX political director has been credibly accused of participating in a mail-in ballot harvesting scheme in Harris County.

            Omar’s associates are doing the same in MN.

            1. Methinks your credibility is not the same as most.

              1. Could care less what you think.

                Affidavits have been submitted to the TX Supreme Court over this.

            2. “Biden’s TX political director has been credibly accused of participating in a mail-in ballot harvesting scheme in Harris County.”

              Ah, yes, “people are saying”

              1. And, who, exactly, is making these accusations? None other than famous Houston quack docter, as well as being a right wing crank and crackpot, Steve Hotze. How less credible can you be?

            3. Have you read the affidavits submitted with the stupid lawsuit which aims to stop legal voting in Harris County? If accusations based on nothing but rumor, hearsay, and innuendo are credible, then these are. If these allegations are credible, let’s see some warrants and arrests. Jesus, somebody told somebody else who told me that there are people working in the clerk’s office who are facilitating absentee voting fraud.

          2. It’s amazing. He says this in every thread and then ghosts every comment asking him to explain what he’s talking about.

  14. Truly, we should only consider the last 4 years. We should ignore the dozens of times that a president nominated a justice to the Court during a presidential election year, the fact that those were almost always successful when the president’s party also controlled the Senate, as well as the fact that they were much less successful when the Senate was held by a different party than the presidency.

    1. Had the Republicans made that argument in 2016, they wouldn’t be hypocrites now.

      1. Had Mitch had the votes, he could have held an actual Senate vote to deny the confirmation.

        1. Having the votes is the key.

          January can’t arrive too soon.

  15. The behaviour of the Republican and Democratic parties is not symmetrical, and it is surely possible to believe that the Senate established a new norm in 2016. But that only goes as far as norms, fairness, and comity.

    However, if one claimed in 2016 that the President had a constitutional duty to nominate a Justice, and that the Senate had a constitutional duty to vote on the nominee, then it would indeed be hypocritical to aver otherwise now. What kind of constitutional duty vanishes because it gets breached once?

    I think it’s also important not to tar everyone with the same brush. Chemerinsky (and others) have shown themselves to be hypocrites, but that doesn’t attach to the Democratic Party generally.

  16. It is about winning. The Rs won’t give up the biggest political prize in 50 years. Same was true in 2016, the Rs held up the nomination because they thought they could get a win out of it, and they did.

    1. Now it’s up to the American people to explain to them that we expect loyalty to country first, THEN party…

      1. Amen. Confirming Gorsuch for the good of the country, and now confirming Barrett for the good of the country.

        1. It has nothing to do with the good of the county. It is about your side winning.

  17. The hypocrisy on both sides is that they are both disingenuously articulating some moral principal. In both cases the Republicans had the votes and intended to use them. The Democrats were simply attempting to prevent that.

    In 2016 it seemed likely that Hillary would be elected so denying Garland a vote was a way of avoiding the character assassination that had engulfed previous nomination on the chance that Trump might win. If he hadn’t (as almost everyone expected) Hillary could have renominated Garland or more likely picked someone else. If she wins no harm to the Democrats.

    In 2020 it seems Trump is likely to lose so confirming his nominee is in the interests of the Republicans. If he wins then there is not harm.

    I wish everyone would simply recognize it’s all about the votes and the Republicans have them at least for now.

    1. The Republicans had the votes in 2016. Why didn’t they make that argument? “We have the votes and intend to do what we think is best for the country, which is holding out in hopes that Donald Trump wins the presidency.” Have you ever wondered why they wouldn’t make that argument?

      1. “The Republicans had the votes in 2016. Why didn’t they make that argument?”

        Mitch didn’t have the votes to deny Garland.

        1. I agree. This is the element that everyone seems to be missing.

    2. But if Hillary had won but the Senate remained in Republican hands, why would the Senate have considered any of her nominees?! What if 15 or 25 or 51 Republican Senators had said: No hearings, not when the Senate and the White House are in separate hands; it’s just a waste of time, because we’re going to reject everyone you nominate. Isn’t that their “principle”?

      1. Except if Hillary Clinton had won, then she would have been President, and there would have been political pressure to confirm someone from her, certainly in her first two years. And she could have withdrawn Garland and nominated someone more liberal. That was the gamble the Republicans took.

        1. Not to mention that even McConnell only spoke about an election year. Had Clinton won, then she would have had (about) three years before an election year started.

          1. Not actually true, B.L.

            Some Republicans, including McCain and Cruz, were was saying that if Clinton won no one she nominated to replace Scalia should be confirmed for her entire term.

          2. And we would have gone those years without replacing any justices. We would be down to 6 members of the Court now and there would be no way the Republican Senate would consider anyone Clinton would have nominated now. Five justices is plenty. The reduction would save taxpayer money.

          3. The whole point of this discussion is that it doesn’t really matter what the stated rationale was, though.

            1. Is it, or is it that you can’t count on politicians to stay true to their stated rationale if it later turns out doing the opposite yields partisan advantage.

              1. Same thing, no? The stated rationale doesn’t matter because the second it’s inconvenient they just ignore it.

          4. ” Had Clinton won, then she would have had (about) three years before an election year started.”

            Nah, we have federal elections every two years. and there really isn’t such a thing as “between elections” any more.

        2. “…there would have been political pressure to confirm someone from her…”

          There was political pressure for Republicans to vote on Garland. That’s why a majority of the country wanted the hearings. Instead of confronting that, Republicans lied, made up an excuse, and now pretend like they were just kidding. The gamble they took was not the election, it was assuming that the American public would not care about the lie later. Hopefully they lose that gamble.

      2. Well, after the multiple threats to expand the court and add in states (DC should just be shifted back into MD anyway, given that DC cannot remotely govern itself), a Republican Senate should do EXACTLY that to every single nominee of a Biden admin.

        1. Hard to believe Maryland would agree to take DC back…

    3. “If he wins then there is not harm.”

      More correct to say, “if he wins then not this particular harm” He’ll have some other harms all lined up and ready to go on Day One. Like the new Republican Healthcare system (a virus in every pot).

  18. It’s only asymmetrical if you believe the 2016 Democrats were honest and above-board and truly believed their position.

    1. Other than that you hate Democrats, do you have any actual evidence that the Democrats didn’t believe their position in 2016? They gave Reagan an election year supreme court confirmation in 1988.

      1. “Other than that you hate Democrats[…]”

        What else do you need?

        1. By your logic, I would also have to love Republicans, or at least hate them less than Democrats. But your assumption does not make reality.

          1. you seem to have made an assumption about my assumption, as well as demonstrated an extremely poor understanding of logic and how it works.

            By my (actual) logic, I don’t give a shit how much you love Republicans, and didn’t say anything that implies that I do.

      2. You and David Post are making the extraordinary claim that the 2016 Democrats, contrary to all experience with all politicians, were actually being honest.

        Extraordinary claims require extraordinary proof. Mere assertions contrary to all experience are just so much partisan hot air.

        And much to your surprise, hating Democrats does not preclude hating Republicans. Your binary world is not reality.

        1. My actual question, to which you have not responded, is if you have any actual evidence the Democrats didn’t believe their position in 2016. And I already offered some evidence that they did: They gave Reagan an election year supreme court confirmation in 1988.

    2. So clear Republican hypocrisy does not matter if you speculate about hidden Democratic hypocrisy.

      With the power of imagination and partisanship, I can rationalize anything!

      1. Clear political history of hypocrisy is far more believable than fantasies of honest politicians of any stripe.

        1. Clear, eh? That’s a tell.

    3. How about the majority of the country that thought Merrick Garland should have a hearing and a vote? Do you think we didn’t truly believe that, too?

      Of course it’s symmetrical if the imaginary Democrats in your head counterfactually behave just like the Republicans did in the real world.

      1. What does that have to do with the thesis of TFA?

        1. It has to do with your post.

          1. The freaking article.

    4. The Democrats are now arguing the Republicans established a norm in 2016 and they should have to live by that norm in 2020. It is not hypocritical to make that argument even if in 2016 the Democrats were being dishonest.

      1. It is hypocritical if the D’s are demanding that the R’s follow their own policy even if they won’t once they control the Senate.

        Meanwhile, racing to confirm a justice now should not at all be seen as a doubt that Donnie can pull out another epic EC victory.

  19. So we are just ignoring that both Biden and Schumer said (in 1992 and 2008 respectively) that the Senate should not consider a SCOTUS nomination in an election year?

    Sure they didn’t get a chance to put to practice, but technically McConnell was following *their* rule, which was clarified by their insistence that Garland be confirmed to mean that it only applies when the Senate and President are from opposite parties, which is not the case this time around.

    1. No, nobody should ignore what Biden or Schumer said. I’m not familiar with the 2008 quote, but I do know what Schumer said in 2007. It doesn’t have much to do with this situation.

      If you’re talking about the “Biden Rule” the only people who are “ignoring” it are the people who tricked you into believing that Joe Biden said, in 1992, that he wouldn’t support President H.W. Bush’s nominee. He said he would, so long as the former President “consults and cooperates with the Senate or moderates his selection absent consultation”.

      1. And Obama did so? It’d be the first time he ever did.

        1. You think Obama did not consult with Congress on Garland?

          Do some research on that.

          1. “You think Obama did not consult with Congress on Garland?”

            No, I do not. Have any evidence that he did?

            1. Garland was Orrin Hatch’s recommendation.

        2. Orrin Hatch, March 2016:

          “The President told me several times he’s going to name a moderate [to fill the Supreme Court 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 Democratic base] wants.”

          1. That does not indicate any consultation whatsoever.

            1. How pedantic of you!

  20. Lawyers. *sigh* Sometimes they really miss the forest for the trees.

    The “symmetry” we’re talking about here is the symmetry of political will. Both Team Red and Team Blue will adjust and justify their actions based on their perceived political leverage. Neither has any principled stand on obeying or not obeying rules, they are both equally pragmatic: whatever puts me on top, I’m in favor of.

    The only reason our author sees any difference in this instance is merely because he didn’t collect enough examples. Broaden the scope a bit, and now you see the forest.

    The way to test such an analysis is to ask yourself this simple question: if the shoe was on the other foot — we had a Democratic President with a Democratic-majority Senate and 46 days to fill a Supreme Court vacancy — is there any doubt AT ALL that the Democrats wouldn’t be doing exactly what the Republicans are doing now?

    Of course not. Symmetry, baby. Big time.

    1. Except that the Democrats wouldn’t be doing it after having earlier taken the position that it shouldn’t happen. They did, after all, give Reagan an election year supreme court confirmation in 1988.

      1. I have to agree it is likely the Democrats would do just what the Republicans are doing now given the hypothetical. However, that is a hypothetical. Post’s logic in analyzing the trees is correct given the current situation, even if he may be missing the forest for the trees.

      2. Democrats praised the filibuster under W Bush. I bet they didn’t do anything to undermine it later when they had a President…

    2. “…we had a Democratic President with a Democratic-majority Senate and 46 days to fill a Supreme Court vacancy — is there any doubt AT ALL that the Democrats wouldn’t be doing exactly what the Republicans are doing now?”

      That would be consistent with the position the Democratic President and Democratic Senators took in 2016. That would be inconsistent with the position of the Republican Senate leadership in 2016, but consistent with the Republican Senate leadership in 2020. That’s why it’s asymmetrical. The Republicans are the ones who have an inconsistent position, not the Democrats.

      1. It would be inconsistent for the Democrats to argue against (the actual of) confirming Barrett because of the norm established in 2016 while at the same time arguing to ignore that norm for (the hypothetical) confirmation if they held the Senate and the presidency in 2020.

    3. DaveM…Finally, someone who makes total sense. I have much the same outlook here. There are only two rules here. The POTUS nominates, the Senate confirms (or doesn’t). Everything else is pure politics.

      This post by Professor Post is complaining about politics. Can you tell me anyone in America who does not complain about politics? Cry me a river.

      Now…I don’t much care for Noah Feldman’s politics, but that letter he wrote about ACB talking about her qualifications was about as gracious as I have read in a long time.

      I am hoping for an in-depth discussion about her judicial philosophy during the hearing. She is going to be there 30+ years. We ought to hear from her now on what she thinks. The more likely scenario is another sorry spectacle by Team D ala the Kavenaugh hearings. Regardless, ACB will be confirmed to SCOTUS and she will be a fine SCOTUS Justice for decades.

      1. I expect you not to complain if the Democrats pack the court, eliminate the legislative filibuster and admit Puerto Rico as a state.

        1. Of course I will complain. 🙂

          1. Then, what’s your beef with Post complaining?

  21. Like most posts by Prof Post, this is pretty standard issue partisan hackery that relies principally on mischaracterizing the other side’s argument.

    Of course the argument in 2016 was that the Senate shouldn’t vote to confirm *a nominee of the other party* right before the election.

    Another instance confirming my priors about Prof Post.

    1. A Mitch apologist.

      1. A binary-world fantasist.

        1. WTF is a binary-world? I’ve heard of binary stars before, but this is new.

          1. Must be some kind of woke-speak with which I’m not familiar.

    2. “Of course the argument in 2016 was that the Senate shouldn’t vote to confirm *a nominee of the other party* right before the election.”

      This is a lie directly addressed in the post.

      1. Meh. The post is mostly misleading analogies – Debbie Democrat, etc – and even the few sentences at the end of the post that seem to come close are thoroughly misleading: “The idea seems to be that when the government is divided, there will be a stalemate, and protracted partisan wrangling, that will further polarize and politicize the atmosphere.” Who said anything about polarizing or politicizing? That just making &(%^ up by Prof Post. No, the “idea” is that the Senate has a right to consent or not, and the Senate is exercising its right to consent in the Barrett case, and declined to consent in the the Garland case in favor of waiting a few months to see if the election will affect who is the nominee.

        1. The last four paragraphs of the post directly confront your original argument. You seem to have now pivoted to the “the Senate can do whatever the people in power want it to do” argument, which is fine I suppose, but just not what any of the actual Senators are saying and certainly not what they said in 2016.

  22. How utterly lame.

    (1) In 2016, many Dems claimed that it was a Constitutional imperative to hold a confirmation vote. That a Constitutional imperative is breached one time does not make it go away. Otherwise, as I previously said, the Alien and Sedition Act would have repealed the First Amendment.

    The Constitution is not a craps game, where the rules can be changed willy nilly.

    (2) Mitch McConnell explicitly stated his principle at the time. You may not like it, or consider it a mere fig leaf, but it is not hypocritical to follow it. The Democrats are free to do the same when they control the Senate, depending on which party controls the White House.

    1. ” Mitch McConnell explicitly stated his principle at the time. You may not like it, or consider it a mere fig leaf, but it is not hypocritical to follow it.”

      No, but having established it, it is very hypocritical to discard it as soon as it interferes with party goals.

    2. (1) How many, in your estimation? Are you prepared to quote them?

      (2) His stated principle at the time was: “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.” Are you contending this is a misquote, does not capture the full weight of his position, etc.?

      Tell us what you understood his “explicitly stated principle at the time” to be and the factual basis for it, so we can evaluate for ourselves.

      1. Look at the prior post.

          1. I added some links, but it is in moderation. Why, I don’t know.

            1. More than one link is auto-moderation.

              I’d re-post with a single link, or multiple links in different posts.

            2. First link. (I posted them in descending order of importance. This was the first.)


            3. Third link:


              BTW, I don’t get the logic here. Three links throws you into moderation, but one does not?

              1. I share your frustration.

            4. I think if you put more than two links it goes to moderation, presumably to avoid spammers. I usually try to just do one link. It’s frustrating.

  23. Bored, you got owned when last you claimed McConnel said what really matters is whether the Senate is the same party as the President. Quote after quote of him claiming it was only about the timing.

    And yet you return with the same nonsense. What the hell, man?

    1. No, check it out again. It’s in the Congressional record. Repeating the same nonsense does not make it true.

      1. McConnell mentioned it had been over 80 years since the Senate confirmed any nominee when the vacancy happened in an election year, and over 110 years for a confirmation when the Senate’s majority party was different than the president’s party. As evidenced by all the talking points quoted by Post, and you can add Lindsey Graham’s 2018 statement on video, people did not believe McConnell was drawing a distinction that would later justify different treatment.

      2. “Repeating the same nonsense does not make it true.”

        Unless they’re saying what you wanted to hear.

      3. Mitch even called it the “Biden Rule” based on Biden’s speech that said no vote if the president and senate majority differed by party.

        S is the biggest gaslighter here but its an A+ effort even for him.

  24. Analogy doesn’t quite work because it assumes identical situations. Which in this case its not. The case in 2016 was dealing with opposite parties, and the case in 2020 deals with same parties.

    To make your analogy work, Debbie would have to be bitching about Robbie refusing to reroll the dice when he played a game with her four years ago, but he’s willing to reroll the dice now that he’s playing a game with Tommy. Note the dice have to be in Robby’s hands for both situations as well to have a work analogy.

    1. Also to work, you’d have to change Robbies argument to him saying the roller of the dice can choose to reroll or keep the dice roll if it hits the floor, and then Debbie dishonestly arguing when she witnesses a game between Paul and Robbie 4 years later that Robbie had said you are not allowed to reroll the dice if they hit the floor within the last ten minutes of the game. You know, if you were interested in a honest analogy.

    2. “The case in 2016 was dealing with opposite parties, and the case in 2020 deals with same parties.”

      Which only serves to point out that it’s nakedly partisan. Mitch wouldn’t be in a hurry if he thought Trump was going to be President until 2024.

      1. It’s 50/50 as to who wins. But this is good politics for the GOP. Shows they are actually living up to their promises.

        1. ” Shows they are actually living up to their promises.”

          Breaking their word shows that they’re living up to their word?

          To a Republican, maybe.

  25. Worst Post Ever!

    The post is utterly deranged but the comments top it! Well done everybody.

  26. All this sophistry crap and no mention of election results.
    The Republicans won the votes for the Senate and the majority controls based on the votes.
    End of analysis. Democracy. The people decided who controls the Senate.

    1. “End of analysis. Democracy. The people decided who controls the Senate.”

      They’re going to, in about 5 weeks. Have you already given that up as a lost cause?

    2. This political will to power philosophy will create a tyranny if followed through on.

    3. No, “the people” didn’t. Not when 400,000 Wyoming voters get to cancel 30 million Californians. If we had proportionate senate representation, then the people would decide such things. In the meantime, your democracy arguments are pure sophistry.

  27. This is a deliciously useless academic argument.

    Maybe the real rule is we don’t waste time on votes where we already know the outcome?

    Recall that the hypocrisy argument is about whether or not to hold a vote.

    The precedent is that it’s ok to vote against nominees for partisan reasons.

    So, why bother holding the vote in 2016?

    Breyer got 87 votes. Ginsburg 93.

    Rehnquist 65
    Bork 42
    Thomas 52
    Roberts 78
    Alito 58

    The Senate withheld consent. Period. Now it doesn’t.

    1. “The Senate withheld consent. Period.”

      Mitch McConnell and the Senate are not the same thing. uh, Period.

      1. No wait. Exclamation point.

  28. I don’t understand why people find this confusing.

    It is very simple.

    The Constitution gives to the President the power to name Justices. The President can nominate people when there are open seats and will pick people the President wants to hold office. There is no specified time limit on when the President can do this. The President could simply ignore an open seat and nominate no one.

    The Constitution gives to the Senate the power to confirm Justices. The Senate can act on nominations when there are open seats and can confirm someone the Senate wants to hold office. There is no specified time limit on when the Senate can do this. The Senate could simply ignore a nomination and confirm no one.

    The Constitution does not say anything about special rules in an election year.

    The Senate followed the Constitution when it withheld consideration for Garland and it is following the Constitution now.

    The “informal rules”, if you could even call them that, matter not at all. All that matters is the process specified in the Constitution, which is being followed.

    The Republicans held the Senate when Garland was nominated and they hold the Senate now. They will exercise their power given by the Constitution as they see fit. When the Democrats take over the Senate, they will do the same thing.

    Hope this helps.

    1. “All that matters is the process specified in the Constitution, which is being followed.”

      Then why did Mitch McConnell tell the American people that all that mattered was that we were in an election year?

      1. It does not matter what McConnell said, or when he said it.

        The Senate was perfectly within its Constitutional mandate in 2016 and it is perfectly within its mandate now.

        1. Here is what you are missing:
          Just because you can do something doesn’t mean you ought to do something.

          This is a pretty ordinary life lesson that the right – the party of personal responsibility – has jettisoned.

          It’s not going to end well. I hope just for them, not for everyone else.

          1. “Just because you can do something doesn’t mean you ought to do something.”

            The President and the Senate ought to follow the Constitution, which they are doing.

            1. freedom121 — Correct. But to assert Senators should merely and formally follow the Constitution, without regard to the political health of the nation is an especially corrosive kind of cynicism. You won’t much find views like that in the historical record of this nation’s founding. Ben Franklin’s famous rejoinder, “A Republic. If you can keep it,” was targeted against that kind of cynicism.

              1. Well then BF would not have liked me. I am a thoroughly corroded cynic.

                Since Franklin died long before I was born, I am not losing any sleep over his presumed opinion of me. We would probably disagree on a lot of things. If we would disagree about propriety of Senate behavior, add it to the list.

        2. Correct. But, they are acting hypocritically in spite of being within the constitutional mandate.

    2. This is a correct analysis of what the Constitution allows. Few people are arguing otherwise, so you’re mostly attacking a strawman.

      The relevant points to consider here are:

      1) Even though the Constitution may allow the Senate to just ignore a President’s nominees or vote down anyone nominated if the President and Senate are from different parties, the Republican Senate majority did offer a specific rationale for their decision in 2016, and some (like Lindsay Graham) went further and made a commitment not to vote for a nominee by a Republican president in an election year, 2020 in particular. While there’s no Constitutional prohibition on politicians being full of shit, some voters may not like it so there may be electoral consequences.

      2) Once we agree that the only thing that matters is what the Constitution allows and not any sort of norms or prior commitments, then there’s a lot on the table. The Constitution doesn’t mandate the current size of the court, or require a filibuster, and there’s a straightforward procedure to add more states. If we’re past any principles other than “whatever the Constitution allows”, why wouldn’t Democrats pursue any or all of these changes once they have power? Many here presume they’ll do that anyway, but the Republican hypocrisy here gives them a lot of political air cover so it makes it more likely to be successful even if they’d want to do it no matter what.

      Overall, this feels a lot like winning an important battle but in a way that makes it more likely Democrats pick up both the Presidency and the Senate, and at the same time makes it more likely that they’ll engage in their own raw exercise of power once that happens.

      1. It does not matter what politicians say. They say all sorts of nonsensical things. Put a microphone in front of them and they will talk for as long as they think a single donor, voter, or source of a bribe might be listening.


        Being in the Senate conveys certain powers. Those powers do not change based on what one or more politicians might say about them.

        The Republicans could block Obama’s nominee, so they did.
        The Republicans can confirm Trumps nominee, so they will.

        Why even listen to what either side says about it? All that matters is a series of votes in the Senate.

        Republicans could stand in the Senate and declare that no Supreme Court justice should be confirmed longer than 6 months after a Presidential election. They could do this while voting to confirm Barrett.

        Barrett would then join the Court and the Republicans speeches would mean exactly nothing.

        All the bloviating about norms and hypocrisy is based on the assumption that what politicians say matters. It does not.

        All that matters is what they do.
        Here they are doing their jobs as described in the Constitution. Nothing they say while doing this matters at all.

      2. On adding states:
        Why assume that the Democrats are the only party that could pack the Senate? There are plenty of solidly Republican areas. Split them up into states and give each nw state two Senators. It was not that long ago that the Republicans held the White House and both houses of Congress. It will happen again at some point.

        Split up Wyoming into 10 states and add 20 Republican Senators. Look around the country and convert a whole series of far right congressional districts into states.

        This would be a bad idea, but the Democrats are not the only ones who could pack the Senate.

        1. Sure, they could do that. Unfortunately, it will require control of the Senate, the House and the Presidency. I don’t see that happening anytime soon–does anyone seriously think the House is even in play at the moment, and it’s likely to get harder after the next round of redistricting.

          On the other hand, there’s a strong possibility that the Democrats are about to take the Presidency and a decent change they’ll control the Senate, and I think there’s a reasonable argument to make that the Barrett confirmation makes both outcomes more likely.

  29. I should also point out, although it is hardly a principle, that a big factor in 2016 was that whoever it would be would be replacing Scalia. Anyone Obama nominated, even Garland, would be a major ideological shift on the Court, which, yes, the Republicans thought would be bad for the country.

    As I stated before, had Obama tried to replace Ginsburg with Garland, the GOP would likely have gone along.

    1. “As I stated before, had Obama tried to replace Ginsburg with Garland, the GOP would likely have gone along.”

      Your big observation is that as long as the Republicans think they’re gaining a partisan advantage, they’ll go along with anything?

      1. I don’t think the ideological makeup of SCOTUS is a partisan advantage. Originalism is an important principle of the GOP.

        1. Bored Lawyer — First please stop pretending Republicans like originalism because of the constraint it delivers. That is laughable in this instance, which is all about throwing off constraint to lunge for power at almost any price.

          More generally, how many Republicans can you name—in the Congress or among the Judiciary—who have the kind of academic training in historical reasoning which it takes to make the practice of originalism anything but a sham?

          1. You are overthinking this. It is clear to anyone with a high school education that Scalia had a very different philosophy of Constitutional and statutory interpretation than Ginsburg had, let alone someone like Brennan. Scalia was an intellectual force, and many judges, including those on the Court, owe their philosophy to him. The GOP Senators, most of whom are lawyers (though not all), understood enough that if Garland replaced Scalia, that would be a major change on the Court, in their view a negative one.
            That was an major unstated impetus for not voting for Garland. I don’t think the same dynamic would have occurred if Ginsburg would have been replaced.

            1. Yeah, but look at the reactions when a textualist decision doesn’t go the right way.

              You may not, but a lot of your party’s base has a deep outcome-oriented streak that is very evident these days.

    2. But then that same factor ought to weigh in the current situation. Replacing Ginsburg with Barrett is arguably a bigger shift than replacing Scalia for Garland, since I think most people would agree that Garland was more of a centrist than Barrett is.

  30. Consider what WILL happen if the Democrats win the Presidency and the Senate in the upcoming election but the Republicans still control the Senate in the lame duck. If another justice dies or retires, the incumbent President, who just lost the election, will nominate another right wing justice. The incumbent Senate, about to change hands in the new Senate, will confirm that Justice.

    This will be precisely what the Constitution authorizes them to do.

    What will the Democrats do when confronted with a scrupulously Constitutional process that does not work out the way they want? They will whine and complain, just as they are doing now. When the get in power, they will do exactly what the Republicans are doing now.

    1. Not quite – a bunch of states kick lame-duck Senators out early.

      1. “bunch of states kick lame-duck Senators out early.”

        Cite? Its a 6 year term established by the Constitution. So I doubt it.

        McSally goes as soon as Arizona certifies because she is just filling an unexpired term.

        1. Yeah, looks like I was quite wrong on this one. Lame duck sessions get the full complement.

  31. The thing about Trump is he’s 100% pragmatic. Nary a principled, ideological bone in his body. He only cares about “winning.”

    What’s interesting is how well the reactions of his opponents demonstrate that they are exactly the same. He is not alone.

    This is a watershed moment in our politics. It’s not clear what comes next. But whatever it is, I don’t think /either/ Team Red or Team Blue survives in its present form.

  32. In all cases, the side with the votes calls the tune.

    Ignore what they say.

  33. Without reading the article or the comments, just the headline, my guess is “everyone.”

  34. If St. Marrick Garland had received a floor vote in the Senate, would he have been confirmed?

  35. I’m confused. So Post is up in arms over this valid use of Constitutional authority because hypocrisy is only one sided (and was always political), but has nothing to say about threats of court packing, Democratic treatment of Republican nominees (including Mrs. Barrett), nuking the filibuster, etc. The Democratic arguments in 2016 were nakedly political as well. They didn’t have the power to push the nominee through (hello divided government) and so they made this crazy argument that the majority should do something against their interests. Clinton could have won so it was always a gamble rather than ensuring a conservative nominee.

    1. “Crazy argument that the majority should do something against their interests”

      JFC what world do you live in? Democratic-controlled senates confirmed appointees by GHW Bush, Reagan, Ford, Nixon and Eisenhower, which takes us back as far as I care to research. Many of them were confirmed unanimously and all of them with democratic votes. It was not at all crazy to expect Republicans to follow the existing SCOTUS nomination norms.

  36. Sorry, folks, but the only rule that counts is that if your party has the President and holds the Senate, the President gets to appoint Supreme Court Justices. If your party has the President, and you don’t hold the Senate, then it’s up to the Senate whether the President gets to appoint, and good luck with that.

  37. The hypocrisy is as clear as the violation of long standing norms in not even considering judge Garland’s nomination. And to answer the question about not confirming Judge Garland, take a look historically at the confirmation process and you would find most most judges confirmed, regardless of the parties involved. And had the Senate refused to confirm him, another candidate could have been nominated.

    Frankly, no President has had a blanket statement made shooting down all prospective nominees for nearly a year. What is different about Obama from all Presidents before him? Is it his education? His home state? His policies?

    But I digress. In taking the road McConnell and cronies have chosen, the Republicans may well reap what they sow depending upon the outcome of the election, composition of the present court notwithstanding. If McConnell can depart from what some argue is a ‘mere’ norm since at least 1900 – if there is no respect for custom and implied law, well, there is nothing to stop amendment or replacement of the Circuit Court Act if the Democrats capture the White House and the Senate in the upcoming election. I’m thinking the “Merrick Garland Act of 2021.” Sure, FDR tried it, but back then, no one had violated the unwritten rule that a president gets to appoint judges to open seats during his term – period. The Republicans violated it, so putting it right may be just the nudge we need to fix what they have broken.

  38. The Republican majority would have been within their rights in 2016 if they had simply said “We have the legal power to do this, it’s been done before, it’s what our voters want, and it’s what we’re going to do,” rather than try to pretend that it was based on some sort of bipartisan high principle. And I think they would have been on firmer ground if they had held a vote and voted him down.

    But they didn’t. They based their actions on claims of high principle. And that claim was complete nonsense. It was complete hypocracy.

    I agree that the winning side — the side that wins and gains and takes action based on its supposed principle — owns that principle more, and is more subject to hypocracy charges, than the side that merely talks and doesn’t act. There’s a reason why judicial estoppel requires winning something based on the argument made.

    But there is no such thing as legislative estoppel. Legislators are entitled to be hypocrits if the voters accept it. They can make an argument, win on it, and then do the exact opposite the minute they find it to their advantage. That’s what happened here.

    1. I don’t think anyone believed them in 2016 either. It was a clear “we don’t have to vote on it if we don’t want to, so there” situation.

      We can look askance at them, but it’s not hypocrisy. It was a campaign lie. I’d think we’d be used to those by now. The voters had to decide whether to hold them accountable.

      1. “We can look askance at them, but it’s not hypocrisy.”

        The change from 2016 to 2020 is where the hypocrisy is coming from. Changing from “We can’t possibly confirm a justice during an election year” to “we absolutely must confirm a justice before the election because we think we’re going to lose it.” and claiming to have some guiding principle that isn’t “we’re doing it because right now we can get away with it.”

  39. The comments about who is a phony are pointless.
    It’s all about power politics.

  40. If Republicans hold the Senate, they will have earned the opportunity to keep their Supreme Court majority, at least for a couple of years.

    If Democrats take the Senate, the course they should follow is clear (with little or nothing Republicans could do to influence, let alone stop, it):

    Enlarge the Supreme Court (13 justices, one for each of the current circuits)

    Enlarge the lower federal benches

    Admit two or three states

    Eliminate the filibuster

    Enlarge the House (with it, the Electoral College)

    Enact single-payer health care

    Criminalize voter suppression with a new Voting Rights Act

    These changes would diminish our system’s structural amplification of rural votes and address substantial population increases.

    The prescription would be House majority + Senate majority + presidential signature (or lack of veto) = progress, in fastidious compliance with relevant law and congruence with ample precedent.

    1. “diminish our system’s structural amplification of rural votes and address substantial population increases.”

      You truly are a one trick pony. And an obsessive one at that.

  41. From an opinion piece in the WAPO by Michael McConnell, among other titles, Director of the Constitutional Law Center at Stanford:

    “A Justice Barrett is unlikely to lead the court in more progressive directions, and more likely to read statutes and the Constitution to mean what they say, and not what liberals want them to say. “

    1. “A Justice Barrett is unlikely to lead the court in more progressive directions, and more likely to read statutes and the Constitution to mean what they say, and not what liberals want them to say. “

      This is not what the rightwingers are hoping for. they want a justice who reads statutes and the Constitution the way they imagine them to be.

  42. You’re absolutely right Prof Post. The Republican senate should have gone Miguel Estrada on Garland and demanded he produce everything he’s every written down to kindergarten finger paintings. Forcing Garland to be the instrument of his own confirmation failing through non-compliance would have been sooo much better.

    It’s impossible to take anything you argue seriously as you’re view of the world is cartoonishly one-sided.

    1. Why don’t you think they did that? Because they didn’t want to pay that political price (and maybe turn up nothing), so they abused the system instead.

      Legal, but craven as hell.

      The fact that you don’t take it seriously says more about your respect for principles and statesmanship than it does about Post.

      1. Sarcastr0, I actually think that Team R made the best of a bad situation in 2016. They elected not to put Judge Garland through a circus. And it would have been a damned circus. Garland’s reputation remains unsullied, even today.

        Politically, what else can you say? This was Senator McConnell giving a big FU straight to POTUS Obama….who did not exactly help himself with the Senate Majority Leader.

        1. Commenter, I don’t think anyone but perhaps you believes the GOP’s actions in 2016 were predicated on concern about Garland’s reputation.

          1. Sarcastr0, I would answer you this way. It is entirely possible for a few things to be true simultaneously. In 2016, did Senator McConnell make a political calculation to deny POTUS Obama a third SCOTUS justice? He did. Was that the primary justification? It most certainly was. Did Senator McConnell also consider not putting judge Garland through an unholy circus as an extra side benefit? I believe this to be the case based on my examination of his political actions in the past.

            Both things can be true. They are not mutually exclusive.

        2. ” I actually think that Team R made the best of a bad situation in 2016. They elected not to put Judge Garland through a circus. And it would have been a damned circus. Garland’s reputation remains unsullied, even today. ”

          Team R (Mitch) didn’t have the votes to block the nomination, so he didn’t bother to hold a vote. That’s one guy, and imputing that to the whole party is a mistake.

          Enough of Team R would have voted to confirm Garland to get him on the Court, unless Team D didn’t vote to confirm.

  43. Setting aside the politicians for a moment, I believe that the law professors who signed the open letter saying that the Senate had a Constitutional duty to hold a vote on a Presidential nominee in 2016, but who now are not articulating that view, are hypocrites. Their analysis was supposedly based on the Constitution, which hasn’t changed on that point since 2016, unless I missed something.

    1. As noted in the OP, saying the GOP should stick to the rule they yelled so loudly above is not the same as saying that rule is the new Constitutional duty.

      1. True, but that is not what the person you are responding to is saying, which makes your response a bit of a non sequitur.
        What Gimlet0153 is saying is that it is hypocritical to say (in 2016) that the Constitution requires a vote on the nominee, and to say the opposite today.

        1. But his example is of people who are not saying the second thing.

  44. Another minor detail left out of all this posturing, is that all the rules have changed, not just how close to the election is too close. Way back in racist pre-history, the Senate represented the STATES, now it is just another popularity contest. A hundred years ago, in 2016, the rules of the game required a super majority, now it doesn’t. Once upon a time the nominees were reviewed on their legal qualification, now they are pilloried on what their enemies claim their opinions are.

    1. Pointing to rules that were changed under the set procedures to change the rules just underscores how unprincipled these actions are in comparison.

  45. Post is an illiterate democrat stooge.

    1. Whereas the stooges you prefer are illiterate Republican brand stooges?

  46. I might agree. However, I recall numerous statements by many, MANY people saying that it was the duty of the Senate not only to hold the hearings, but that they had a “duty to consent”. In short, that they had to confirm Obama’s choice no matter work.

    Yes, the Republicans should have worked with Obama on a choice that both sides would agree to. However, that is not what people were claiming in 2016. People were demanding that it be a rubber stamp.

    It’s not nice for the Senate to hold up a nomination that long. However, they had to answer for that in their next election.

    1. “I might agree. However, I recall numerous statements by many, MANY people saying that it was the duty of the Senate not only to hold the hearings, but that they had a “duty to consent”. In short, that they had to confirm Obama’s choice no matter work. ”

      So the real problem is that you remember things that didn’t happen. You should see if you can get help for that.

  47. If the rule of the day is “Do what is good for my party, more so if it hurts the other party.” would mean neither of them is being hypocritical. Something I hadn’t really considered until I read this.

    1. The rule is “do what’s good for my party, whether or not it’s good for the country” but the story is “we just want what’s good for the country.”
      If you can’ t see the hypocrisy…

      1. In which case, both sides would be hypocrital.

        1. How many sides of this argument are you seeing?

  48. The real problem with labels of hypocrisy is that it’s either defined so narrowly that nobody is ever a hypocrite (because you can ALWAYS find something different that makes the situations not the same), or everybody is always a hypocrite (because anything under the sun is inconsistent).

  49. The Dems took the position in 2016 that the nomination should move forward consistent with past practice. The Republicans changed the rules and established a new precedent that in the lead up to an election, the nomination should wait so the voters could decide. The Dems are understandably unhappy that the Republicans are now abandoning the precedent which they set.

    The only rule which is followed consistently is a higher level mandate to “win at all costs”. Expect both parties to adopt this rule going forward. This is the opposite of collaborative governance and we’ll all suffer for it.

    1. “The Dems took the position in 2016 that the nomination should move forward consistent with past practice.”

      Then they were lying about past practice, as has been extensively documented at this blog.

  50. “The Dems took the position in 2016 that the nomination should move forward consistent with past practice.”

    Then they were lying about past practice, as has been extensively documented at this blog.

    1. Repeating a claim does not make it true-r.

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