The Volokh Conspiracy

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Breaking: NBC News Reports Justice Breyer Will Retire

The confirmation hearing will likely be held as the Supreme Court term is drawing to a close.


Breaking news from NBC News.

Justice Breyer has announced his retirement much earlier than his predecessors. Justice Souter announced on May 1, 2009, and Justice Stevens announced on April 9, 2010. Given this early notice, we could have a confirmation hearing in April or May. Usually, a Justice steps down upon the confirmation of their replacement. But given this early notice, a replacement could be confirmed before June. The Democrats may have to slow-walk the process to ensure Breyer stays on the Court till the current term finishes.

Much more to come.

NEXT: The Right to Defy Criminal Demands: The Duties to Retreat and to Comply with Negative Demands

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  1. Here comes another idiot hack like Sotomeyer or Kagan.

    1. Sotomayer might be an idiot hack, but Sotomayor is a fairly decent jurist.

      1. Kagan. I assume you meant Kagan for the latter.

        1. I think the first was pointing out the typo(s) in Sotomayor's name. Except it misspelled a misspelling (by making it closer to the correct spelling).

            1. Nope. Got it right. Try again.

              **** WHOOOOSH ****

              How BCD misspelled it: "Sotomeyer"
              How you misrepresented his misspelling: "Sotomayer"

              1. Oh I see. Yes, me misrepresenting his bad spelling makes me feel so bad.

                1. Yes, me misrepresenting his bad spelling makes me feel so bad.

                  You misrepresenting his spelling was nothing. Your rush to issue a snarky response to Micheal P without thinking first was what made you look foolish.

          1. Unwise Latina

      2. LawTalkingGuy
        January.26.2022 at 12:17 pm
        Flag Comment Mute User
        "Sotomayer might be an idiot hack, but Sotomayor is a fairly decent jurist."

        Not even close
        Encino motors
        Shuttee v Bamn

        Her dissent in Shuttee where she wrote that it unconstitutional for the voters of a state to adopt an amendment to the state constitution requiring compliance with the 14th amendment of the US Constitution.

        1. "requiring compliance with the 14th amendment."

          For the 20000th time this is wrong. You keep being wrong on this. Stop being wrong.

          Much like a state banning the death penalty is not "requiring compliance with the 8th amendment," banning affirmative action is emphatically not "requiring" compliance with the 14th amendment.

          The Court ruled in Grutter, Gratz, and Fisher II that certain affirmative action programs are constitutionally permissible and don't violate the Fourteen Amendment. In fact cert was JUST granted to reassess that position.

          You may think affirmative action violates the 14th amendment, but Michigan cannot "require compliance" with the 14th Amendment when the Court said it doesn't prohibit what they were prohibiting.

          Also the Schutte dissent is much less nuts than Gorsuch/Thomas saying Gideon and International Shoe were wrongly decided for god knows what reason.

          1. LawTalkingGuy
            January.26.2022 at 1:58 pm
            Flag Comment Mute User
            "requiring compliance with the 14th amendment."

            "For the 20000th time this is wrong. You keep being wrong on this. Stop being wrong."

            Law - not talking Guy - In a nutshell that is exactly what she wrote.

            1. You keep missing the point. The 14th Amendment did not prohibit affirmative action at the time she wrote that.

              1. Affirmative action is not in compliance with equal protection.
                That the SC sanctioned non compliance with the equal protection clause does not make affirmative action in compliance with 14A

                1. A lot of the jurisprudence is wrong. That doesn't mean someone is prohibiting compliance with the Constitution when they say the government can't ban something its precedent allows.

                  1. You seem to have the Constitution and precedent confused. We're not saying that precedent prohibits it, we're saying the Constitution prohibits it.

                    Happens that sometimes they conflict.

                    1. JFC. I’m not confusing anything. As a practicing lawyer I happen to know that what I think the Constitution (or a statute) means doesn’t mean shit if SCOTUS or the highest court in my jurisdiction says something else.

                      The fact you or anyone think the constitution means X even though precedent says Y is irrelevant. “You would be doing your job very badly if you went around telling clients: well SCOTUS says Y but I say the Constitution means X. So you can go ahead and do that no problem.”

                    2. But you can't even have a concept of the Supreme court doing well or badly at their job, if you are so utterly legal 'realist' that you think the Constitution IS whatever they say it is, regardless of what the words may say.

                    3. I actually do! I think most of what they say about criminal procedure is wrong. Qualified immunity is obviously made up and wrong. But….that’s what the law is. I can’t pretend that’s not the law when I’m writing in a case involving the topic. So too Sotomayor can’t be faulted for thinking the 14th Amendment permits AA in 2014…because that’s what the law was (and still is). She can be faulted or thinking EPC means Michigan couldn’t ban it, but not thinking it’s legal to have.

                      And so too, when this Court inevitably screws up the law in a vast majority of areas…I will have to accept that their dumbass interpretations are the law of the land going forward. When we’re stuck with Gorsuch saying there’s a strong non-delegation doctrine (he’s wrong) I’m going to have to accept that if he gets a majority of votes.

                2. You are not the arbiter of the 14A.
                  The Supreme Court is.

                  Don't mix up your is and your ought. That's Don Quixote territory.

                  1. Don't mix up your is and deemed. Bribing the umpire may get you a ruling that a foul ball is a strike, it doesn't MAKE a foul ball a strike.

                    1. Foul and strike is an objective thing. They're called judicial opinions.

                      You confuse your confidence for a special insight into reality over and over again. That doesn't make you extra correct, nor does it make those who disagree with you all bad-faith bribed umpires.

                    2. No need for a disclaimer that Brett hasn't watched baseball since (whatever).
                      A foul ball is a strike. Just not a third strike.

              2. "The 14th Amendment did not prohibit affirmative action at the time she wrote that."

                "At the time she wrote that"? It was ratified over a century ago; If it EVER prohibited affirmative action, it prohibited it at the time she wrote that.

                But her position was worse than saying that the 14th amendment didn't prohibit affirmative action: It was that it prohibited prohibiting it!

          2. As Scalia put it in his concurrence,

            Even taking this Court’s sorry line of race-based-admissions cases as a given, I find the question presented only slightly less strange: Does the Equal Protection Clause forbid a State from banning a practice that the Clause barely—and only provisionally—permits?

            You have to go to a pretty good law school to answer that question in the affirmative.

            1. I'm not even saying I agree with her dissent. I just don't think his framing is correct at all. Because Michigan was not and could not be "requiring compliance" with the 14th amendment.

              You can't "require compliance" by banning something it doesn't prohibit. Another example: it is not requiring compliance with the 4th amendment for a State to ban no-knocks. Because the 4th amendment doesn't have a categorical ban.

              1. No, I think it's a reasonable framing, because the Court, in permitting affirmative action, was waiving compliance with the 14th amendment.

                1. No. That's not how it works.

                  1. No, that's exactly how it works: The 14th amendment literally demands equal protection of the law, affirmative action literally demands treating people differently according to their race or whatever.

                    The Supreme court made an exception to the principle the 14th amendment laid out, when it approved of affirmative action.

            2. Joe. Not Scalia. He correctly conceded that the EPC does not forbid AA at the time he wrote it.

              1. Well no, he started off by saying that he did think affirmative action was illegal:

                Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say (except that this case obliges us to say it), the question answers itself. “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.” Grutter v. Bollinger, 539 U. S. 306, 349 (2003) (Scalia, J., concurring in part and dissenting in part). It is precisely this understanding—the correct understanding—of the federal Equal Protection Clause that the people of the State of Michigan have adopted for their own fundamental law. By adopting it, they did not simultaneously offend it.

                He then went on to (correctly) note that even granting the dubious premise that affirmative action is sometimes constitutionally permissible, it's clearly also permissible not to engage in it.

                1. Yeah. He THOUGHT that. But he conceded that it was. Joe has been consistently wrong that he thought Sotomayor dissented from allowing Michigan to "comply" with the 14th Amendment. When she did no such thing. Her view was wrong on the Michigan ban was wrong, but she wasn't saying it was "illegal to comply with the 14th Amendment" which is what Joe keeps insisting.

                  1. You're being very vague about what that "it" refers to in "that it was".

                    He thought that the 14th amendment forbade racial discrimination on the part of government. He conceded that Supreme court precedent wrongfully held the contrary. He was quite clear on the fact that the meaning of the Constitution, and what the Court might say the meaning was, were two different concepts, and his judicial oath was to the first, not the second.

      3. What about Sotomeyer?

        1. What about Oscar Mayer?

    2. Actually Biden should take a page out of Obama's book and nominate a conventional liberal with impeccable credentials like Kagen, of whatever race.

      But knowing Biden he will probably go for a intersectional pick that checks 6 boxes, and has deep radical roots,and depending how honest they've been in their views might not be confirmable.

      But I will make one prediction now, it won't be Kamala Harris for two reasons, she won't go because it's two much work, and she isn't confirmable anyway.

      1. Pretty sure whoever Biden picks, the right will find they have deep radical roots, and you will buy it.

        And I assume you know Biden made a campaign promise to appoint a black woman to the Court and are just pretending cynicism to rack up prediction points.

        1. I mean if they're smart that's what they will go with. If they try some bullshit about it being an election year, or their resume is "thin," or they have a "rap-sheet" (a couple tickets), they're going to look much more stupid than normal. I mean it probably wouldn't matter electorally, but I'd like to think extremely noticeable idiocy has some negative effects on the margins.

        2. To date, that's been a pretty safe assumption; Look at the way Garland was portrayed as a Supreme court nominee, and the way he has acted as AG.

          1. Lets make unfounded assumptions because you're mad at Garland.

            Joining some others around here and discarding the truth because libs make you mad? Come on, man.

          2. Do you mean the way he has acted as AG, or the way Fox News told you he has acted as AG?

      2. Yes, go for the angriest voice in order to make the progressive radicals happy. Of course, there is a choice that some Democrats in more centrist or conservative states might balk at that. Plus having two angry minority women on the Court will leave poor Kagan with the task of trying to actually put a sane face on liberalism.

  2. The nominee is a known rapist.

    1. We don't even know who the nominee will be yet.

      1. After what we saw with Kavanaugh, I think that was the point.

      2. We're talking a Democratic nominee, which means a good chance they're either a known rapist, known terrorist, known communist, or mentally ill. The only certain thing in this administration is that they'll check some minority boxes.

        1. Embrace the healing power of "and".

        2. Brett,

          Why do you embarrass yourself with crap like this? Do you just like sounding like a complete RW nutjob?

          1. Why would I be embarrassed to notice the trend? Biden nominated an eco-terrorist to head up the BLM, a communist to be Comptroller of the Currency, Biden himself has been credibly, (By Democratic standards, at least!) accused of rape.

            Democrats just seem drawn to people with unconventional morals.

            1. "Democrats just seem drawn to people with unconventional morals." Hoo boy.

              Lets survey the Republican's mountain of morals that I remember off the top of my head, shall we?

              First off, the entire party is beholden to an immoral egomaniac also credibly accused of sexual assault (and who was caught on tape not understanding of consent).

              The former house speaker molested children.

              Another former house speaker cheated on both wives, one of whom had cancer, and railed against the indiscretions of a Democratic President. (He also had to sign for separate ethics reasons)(his tapped replacement also had to not take the job due to affairs....he was replaced by the child molester)

              Jim Jordan is credibly accused of ignoring sexual abuse as a coach.

              Madison Cawthorn is accused of sexual misconduct and has lied about his getting into the Naval Academy.

              Duncan Hunter spent his campaign funds on drugs and prostitutes and tried to blame his wife.

              Tim Murphy urged his mistress to get an abortion and disclaimed his pro-life stance to her.

              Scot DesJarlais was a DOCTOR who slept with his patients and pressured them into abortions.

              Larry Householder took a $60 million bribe from a utility to bail it out.

              Robin Vos once denied a paralyzed legislator the opportunity to do remote committee work and then when he raised the issue accused him of "grandstanding" and dragging attention away from his presidency of the American conference of state legislators (holy narcissism)

              Kristi Noem pressured state officials to get her unqualified daughter a real estate license. (The AG from the state killed a guy and claimed he hit a deer, btw)

              So yes. Being drawn to people of questionable morals is definitely a problem exclusive to Democrats.

              1. And you wonder when I say that we grade political morals on a curve, and that even a middling good politician was somebody you wouldn't trust to babysit your children? (Like our overly touchy, hair sniffing President. Wouldn't have hired Trump to babysit, either.) Yeah, the morals of politicians of all parties suck.

                But we're not talking people who were, sadly, elected. We're talking nominees, who've been vetted for such concerns, and they STILL nominated an eco-terrorist to the BLM!

                1. Lol. Moving the goal posts now, huh?

                2. Can't tell if you're trolling, or really that crazed by confirmation bias.

                  1. He just needs to deflect because it's so obvious that Republicans have elevated so many demonstrably terrible people in recent years. People who can't be said to qualify as moral under the vast majority of religious or secular moral systems.

                3. We're talking nominees, who've been vetted for such concerns, and they STILL nominated an eco-terrorist to the BLM!

                  I don't particularly care for Ms. Stone-Manning's views on resource development, but that seems like a rather tendentious characterization.

                  1. Views? She collaborated with criminals who spiked trees to prevent logging. How would you characterize that if not eco-terrorism?

                    1. It's called "Freedom" and "liberty" for the environment.

                    2. 35 years ago, she wrote a vituperative letter to the Forest Service telling them not to harvest trees designated for logging because they had been spiked. She was never charged with a crime and ultimately testified against the actual spiker at his trial.

                      I probably wouldn't put that on my resume or anything, but "terrorist" seems a bit melodramatic.

                    3. I assume you are familiar with the mechanics of someone becoming state's evidence - in exchange for ratting out your accomplices, you get immunity from being prosecuted for participating in the same crime(s).
                      Have you watched Goodfellas"? Henry Hill was also not charged with a crime and ultimately testified against the other mobsters at their trial - do you think it would be "melodramatic" to describe him as a mobster himself?

              2. Screw Duncan Hunter. He may have been GOP but he hated conservatives. He is a corrupt SOB and so is his son. That's California politicians for you.

          2. Why do you embarrass yourself with crap like this?

            You first.

          3. Yep. Brett let his slip show on this's not pretty

        3. Lordy this subject has brought out all the latent bigotry in this outfit.

      3. So what? If it doesn’t matter that it didn’t happen, why should it matter who didn’t do it?

      4. "We don't even know who the nominee will be yet."

        But should an allegation surface during the confirmation process, the time required to investigate might push the confirmation past the midterms. Bummer.

    2. "The nominee is a known rapist."

      I hear she drinks a lot of beer too.

      1. I hear she drinks a lot of beer too.

        And *gasp* likes it!

  3. Hmm, is this a signal the Brayer thinks the Democrats will loose control of the Senate in November?

    Retire now so the Democrat controlled Senate can confirm whoever Biden Nominates to replace him rather than leaving Biden fighting over a nominee with a Republican controlled Senate?

    1. Or that its not worth the risk, even if he is bullish on chances.

      1. Or that he's realized over the last few months that he'd rather spend time with his family than keep working.

        1. It actually is refreshing, compared to the ones who cling to that seat to their last senile breath.

          Obviously I'd have preferred that he hung on until a Republican would be picking his replacement, the way Ginsberg did, but can't fault him for the decision.

          1. It's Gins BURG, Brett. A lot of people make this mistake, but the tendency to make it is not randomly distributed.

            1. Sometimes a mistake is just a mistake, CJ.

            2. I've seen that mistake made on the official web site of the State of Connecticut, in her TIME magazine obituary, in the Minneapolis Star Tribune, in USA Today, in National Geographic magazine, on CBC's and Inside Edition's YouTube channels, in an article published by Duquesne Lawyer Magazine and many more.
              But I'm sure you have some valid statistical analysis that supports the claim that the mistake is not randomly distributed.

            3. Actually, it's Ginsburg. Don't fall into that Sovereign Citizen trap, brother.

            4. What am I missing? I usually have a nose for thinly-veiled antisemitism, but I am not seeing any here. Ginsburg and Ginsberg are both usually Jewish names, so it is not like one is making some kind of point using one over the other.

              Is there some other difference between the two that I am overlooking?

              1. I was viciously implying that she was a beat poet.

                1. I guess so, because Captain Toke also spelled his square name with a "u".

          2. Don't worry your pretty little head, I'm sure Moscow Mitch is hard at working inventing a new solemn tradition, good for one ride only, that the media you constantly whine about will sagely nod and go along with, playing their role in the two-man con (D)s are apparently too stupid to figure out.

            Easy peasy.

    2. Slyfield, shouldn't you be some kind of media analyst?

      1. No, if I was a media analyst I wouldn't be wondering about his motives, I would claim to have an anonymous (but highly placed) source that gave me detailed information on his motives.

    3. "Brayer"

      That would be a cool name for a judge. Hee-haw!

  4. The nominee will almost certainly be Judge Ketanji Brown Jackson of the D.C. Circuit. She is very smart and very liberal, and may even get a few Republican votes (as well as every Democrat vote presumably).

    This will at least give Biden, whose first year has been an unmitigated disaster, a small claim to history in placing the first black woman on the Supreme Court.

    1. She would be a disaster for the reputation of the institution.

      1. Seriously? After Thomas and Kavanaugh, how can the Court's reputation be any worse?

        1. JustCurious, MoreCurious, why do you consider Thomas and Kavanaugh bad for the Court's reputation?

          1. When SCOTUS reconsiders affirmative action, will Justice Uncle Thomas acknowledge at he is the foremost beneficiary of the challenged doctrine in American history?

            1. "Justice Uncle Thomas"

              Says all we need to know about your bigoted views.

      2. Some things, like Vegemite, Zima and Bart O'Kavanagh, are simply too foul and disgusting to be held in any worse repute than they are now.

        1. That reminds me, I have to find some Vegemite to try.

      3. Bravo, after the Garland affair the court's reputation is in complete tatters. His nonconfirmation is the worst political act I've ever seen in my life. Seconded only by the fact that there would be any practicing jurist of honor in the nation who would accept the poisoned position until their colleague Garland was given his fair shake. But there was such a jurist (Gorsuch).

    2. Not a snowballs chance in hell Biden can get her confirmed. Way too ideological and liberal. Also too prominent. Its a 50-50 senate, Biden cannot lose a single vote.

      He will probably choose someone with a low profile who is also liberal so no one can make an objection that would kill her chances.

      1. No filibuster, remember, so the nominee only needs 50 votes and Harris breaking the tie.

      2. The midterm elections are shaping up to be a disaster for Democrats. They will time this vote to energize their base a bit. There will be some Republicans afraid to vote against a black woman. She was confirmed last year to the DC Circuit by a vote of 53-44, which included "yea" votes from all 50 Democrats plus Republicans Reed, Graham, and Collins.

        1. That is a good point. Recall the main reason the Democrats fought Miguel Estrada so hard was that they realized if he got confirmed to the CCA, it would be nearly impossible to block him after a SCT nomination.

        2. Murkowski was third Republican yes vote, although perhaps some Alaskans think Jack Reed (D-RI) is more of a Republican than she is.

        3. You might have the biggest argument AGAINST her. She was only confirmed to a circuit court ~6 months ago. How long does a SCOTUS nominee typically sit at the circuit level prior to being nominated?

          1. Depends on the timing. Souter was only on the first for a few months. Barrett was only on for a few years. But Brown-Jackson was a trial judge....a much harder and more practical job than law professor (which is what Barrett was). Also Kagan never was on a court before SCOTUS.

            And lets be real...look at how many Trump picks barely had any legal experience and got lifetime appointments. Turning around and criticizing Brown-Jackson for not having a good enough resume is a joke and just a fig leaf for ideological objections.

            1. A whole slew of Justices (including Chiefs) through out history were never judges (or even lawyers), beginning before before John Marshall, including some of the consequential.

              1. You've got a good point there. That should negate any concerns of low time at the circuit level. I now wonder if it would be good to get away from circuit level judges for a bit.

      3. The Biden administration has been pretty successful so far with judicial nominations, specifically including the elevation of Judge Jackson from the District Court to the Court of Appeals. Why would a SCOTUS nomination be problematic?

    3. After the first black, and the first women, doesn't the first black woman lack a bit of zip?

      It really is sad, though, that the race and sex matter so much to the Democrats.

      1. Brett Bellmore
        January.26.2022 at 12:37 pm
        Flag Comment Mute User
        "After the first black, and the first women, doesn't the first black woman lack a bit of zip?
        It really is sad, though, that the race and sex matter so much to the Democrats."

        Tremendous progress has been made in race relations over the last 60-70 years, Until the democrat party - the party of racists wanting to start a race war.

      2. It's actually kind of clever politically: just like the Democrats didn't seem to be able to say talk about Barrett without jamming their foots into their mouths, Republicans are likely to embarrass themselves trying to talk about a highly qualified black woman. You're already off to a good start!

        1. Eh, I don't care whether the nominee is white, black, male, female. I'm just a bit put off by how racist and sexist the Democrats are.

          I already know I won't like the nominee, I'm free to be amused by the Democrats' weird obsessions.

          I mean, seriously, Kamala Harris? Try to tell me that wasn't Biden making race and sex more important that everything else combined.

          1. Why try to tell you that, when Biden freely stated that "woman of color" was the top job qualification even before he picked Harris

            Its hard to escape the racist undertones of that, its literally saying women and minorities are inferior, otherwise he'd just say he'll pick the best person for the job. he's literally saying a woman of color could never be the best person for the job

          2. There is crappy vice presidential material in people of all races and genders, Brett.
            Easy enough to choose among them.

            1. If that's your goal, sure.

              1. It was a joke, but thanks for the response.

            2. Yes, there are crappy vice presidential material in all races and genders. Your chances of finding a crappy one increase dramatically when you make checking two boxes your primary selection criteria, and not being crappy secondary.

              So, Biden committed to finding a black, female VP. This shrank the available pool to the point where he ended up picking Kamala Harris. You see the problem here?

              Making not being crappy primary, and checking boxes secondary, means you get non-crappy nominees who may or may not check boxes.

              I guess the first approach looks like it makes sense if you think the most important things about a nominee are whether or not they have a Y chromosome, and how much melanin they have in their skin. WHICH IS A REALLY STUPID THING TO THINK.

              1. This issue here is that you are assuming race and sex are the only things about Kamala Harris that made her an appealing choice.

                You know why people are chosen for Veep, and it's about an electable ticket.

                Suddenly you have forgotten that, in order to make a point about racial essentialism that's appears to have boomeranged around on ya.

          3. Weird how race and sex aren't an issue for Republicans when a white man fills a roll. It's almost like you think white men should be the default setting in every situation, and any deviation from that norm is racial pandering.

            1. You really need to learn how to look at reality beyond the grievance filter.

              1. I am looking at reality, that's why I see a pattern to how conservatives react to PoC and women filling prominent rolls in society.

                1. And how do they react? By discussing their character instead of their characteristics. There is only one party that has been fighting for segregation for 150 years, and it is yours.

                  1. By freaking out when a black guy might be Bond. Or get a job. Or lands a magazine cover. In short...poorly and hysterically.

                    1. Democrats freak out a lot more about Black Republican nominees than Republicans freak out about Black Democratic nominees.

                    2. No kidding. I remember when William Lucas ran for Governor back in Michigan as a Republican. The Democrats went absolutely nuclear making sure to, not just defeat him, but destroy him, even though they'd seen nothing wrong with him before he switched parties.

                      Because blacks seeing blacks succeed in the Republican party is an existential threat to the Democratic party, it doesn't win enough white votes to be viable if they didn't get almost all the black votes. So any time a black Republican starts to get some visibility, they have to be destroyed.

                  2. Have you read the comments here? No one is talking about character.

                    No one knows anything about any of the potential nominees, but they've been called radical, criminal, rapists (funny joke), tokens.

                    And it's not going to get better.

                    1. "No one is talking about character."

                      Because Biden didn't promise to pick a judge based on character. He promised to pick a judge based on skin color and gender.

                    2. "rapists (funny joke)"

                      Funny joke, shitty tactic to derail a nomination.

                    3. Luckily his likely picks and who he was thinking of have good character too. If they have the skills and can break some diversity barriers at the same time…why wouldn’t you do that? ( Reagan knew this FFS)

                    4. "Luckily his likely picks and who he was thinking of have good character too."

                      If you say so. Given that the color/vagina criteria exclude a large part of the available pool.

                    5. TiP, if you think there are no qualified black women, then it's a problem.
                      Otherwise, you're just being a bigot.

                      This is not an optimization problem; it's a threshold one - you can't meaningfully tell the difference between most top candidates' potential future performance.

                      And the funny joke part was sarcastic. You lot see humor more as a weapon you don't quite understand than a source of mirth.

                    6. I mean by all the traditional measures the leading candidates are. And while it’s a BS qualification, I notice none of the conservative geniuses on SCOTUS managed to get EIC of Yale Law Journal. (Leondra Kruger did)

                2. Conservatives seem to love a certain Black Justice who is rather prominent.

                  1. I assure you I'd like Thomas just as much if he were an albino, or a nice shade of purple. We like him because of his rulings, not his color.

              2. It really is sad, though, that the race and sex matter so much to the Democrats.

                This was the grievance filter that started it all off.

          4. Brett, did you object to the affirmative action nomination of then-judge Thomas, who was never fit to carry Thurgood Marshall's briefcase?

        2. "Republicans are likely to embarrass themselves trying to talk about a highly qualified black woman."

          Marsha Blackburn probably has her staff pulling every potential black nominees traffic record so she can refer to it as a rap sheet.

          1. Funny thing about Marsha Blackburn, she had recommended a Black Democratic woman judge for that seat before Biden nominated his pick with numerous misdemeanors, and no experience.

            "Sen. Marsha Blackburn (R., Tenn.) in July recommended Camille McMullen, an accomplished black judge who has served on a Memphis bench since 2008, for a seat on the Sixth U.S. Circuit Court of Appeals, which includes Tennessee. Months later, the White House instead opted to nominate a Andre Mathis, a Memphis attorney who has not served as a judge in his career."

            1. That doesn't absolve her when she wants to oppose a nominee and reaches right into the racism box.

              1. Also...a ton of Trump circuit picks lacked judicial experience. But this is super common in both parties and doesn't phase me much (although I would prefer that more appellate judges everywhere did trial practice at some point).

                But the more hilarious thing is how many lacked significant LEGAL experience and still got the Blackburn endorsement to be a judge. Kathryn Mizell spent four of her 8 years as a lawyer clerking. Justin Walker didn't even have a long professorial career before being fast-tracked to the bench.

            2. "with numerous misdemeanors"

              3 traffic tickets. Jesus, you're as bad as she is. WTF is wrong with you?

              "a Memphis attorney who has not served as a judge in his career."

              HAHAHAHAHAHA. How many people lacking significant legal, let alone judicial experience, did Blackburn and other Republicans vote for during the Trump years? Do you want me to get a list, cause I'll get a list. This is NOT the path you want to go down lol.

        3. Don't say anything. Just vote "no."

        4. So, all of you on my side (the side that isn't going to like Biden's pick): you're flunking.

      3. That's all that matters to them.

        They worship blacks.

      4. AFAICT the ones obsessing over Jackson's race and sex are on the right.

        1. As far as you can tell makes the Planck distance look like the Grand Canyon.

      5. It just sets the stage for the "First black woman openly lesbian Justice" to be followed by the "First black woman openly lesbian quadriplegic Justice" to be followed by the "First black woman openly lesbian transgendered quadriplegic Justice".

        You are lacking imagination if you think the Democrats aren't playing with a much larger identity politics deck than just race and sex.

        There's lots of opportunity in the combinations of just the slightly expanded deck that includes sexual preference (at least four values: Homo/Hetro/A/Bi), sexual identity (at least two values but I think many more such as "fluid" - I'm confused by which count though), and disability (even just at the highest level including but not limited to motor, visual, auditory and mental). Democrats can produce a long string of "firsts" that they will brand any Senator voting against confirmation of with some "-ist" label.

        1. Just a slippery slope of hypothetical grievance.

          How do you stand it?

        2. How about Biden nominate Stacy Abram's. That would be fun

          1. Who is Stacy Abram, and what possession of hers do you want him to nominate?

    4. No. The best Biden can do is a center-right jurist who's actually a closet leftist--someone like Stevens or Souter

      1. He’s going to nominate Kruger or Jackson, they’re going to be confirmed. It’s not going to be a fight.

        1. There will be a fight over it. Making political statements for your side regardless of whether there's a chance to win is so 2020. You're right that the nominee will be confirmed though. About the only thing that could stop that is for someone like Pat Leahy to drop dead. Even that might not be enough.

  5. Despite being more right'wing in general, I've always liked Breyer. Even when I disagree with him a lot. I just like ... pragmatism is refreshing at times, he isn't the best purveyor of it (and it can devolves into picking a side that agrees with your ideological views often, but eh, originalism can do the same), but he seems to the only one who actually cares about outcomes. Outcomes and intention shouldn't dominate but they ought to be a factor.

    Like I would prefer a Richard Posner to Breyer (Posner actually understands economics) but Breyer is what we had. I liked it. I dont want a court with 9 committed ideologues, right or left, which unfortunately it looks like it's coming to.

    Sad to see him go, but I understand not wanting to work as a justice until you die, and seeing as Republicans might take congress next year ... yeah this is the best decision for him to make, though tbh I wouldn't mind if Republicans take the senate before they can confirm 🙂

    1. Breyer deserved better from the Administration, it appears that the Whitehouse leaked his announcement prematurely, and multiple sources are saying Breyer is upset.

      He should juat deny it, then go back to work until he is ready.

      1. That will probably never be publicly admitted. For that matter, Breyer could admit this on live TV and the MSM would still deny it. The purpose of the MSM is to help the Democrats and lying is easy to do when you feel justified (and you control almost all the airwaves and newspapers).

  6. Well, we've got an election coming up. The democratic thing to do would be to let the voters decide which Senate gets to confirm the nominee.

      1. That was supposed to be a laughing emoji, I guess that is not supported

        1. The emoji is laughing at you!

    1. Tradition is that Presidents always nominate, no matter how close to an election, and the Senate generally confirms if the majority is of the same party. Basically the only way Biden doesn't get his nominee confirmed is if he picks such a fire breathing left-winger that one or more Democrats can't stomach the nominee.

      1. On the other hand, if he doesn't pick a fire-breathing left winger, several democrats won't stomach the nominee.

        This could be a lot of fun.

        1. Short of him nominating somebody Republicans would really like, I can't see the left fringe of the Democrats' Senate caucus refusing to vote for his nominee. The main chance of a failed nominee is going too far left.

          Especially since it's Biden making, or at least announcing, the nomination: He hasn't exactly racked of a track record of going for moderates.

          1. I wonder if Biden will regret throwing that tantrum in the press over Manchin and BBB. Publicly shaming Senators whose votes you may desperately need in the future can be a bad idea.

            1. I wonder if Biden will regret throwing that tantrum in the press over Manchin and BBB.

              You can't regret what you can't remember.

    2. We already did, in 2020.

    3. It's not out of the question that Biden will fuck it up. Nominate a string of unconfirmables and run out the clock.

      1. You're just full of hope for shitty longshots, eh?

        1. I don't know what cave you've been living in for the past year, but Biden fucking something up is anything but a long shot.

      2. "Don't underestimate Joe's ability to fuck things up." Barack Hussein Obama.

  7. So Biden has to pick a candidate that gets the votes of Manchin and Sinema, or risk delaying the confirmation until after the midterms. Interesting.

    1. Given their disgraceful opposition to voting rights, the Democrats should do the right thing and not let Sienna or Manchin vote on this nomination.

      1. I can't tell if you are bring sarcastic or not.

        1. What difference, at this point, does it make?

        2. I read somewhere that "2 senators cannot be allowed to defeat what 48 senators and 210 House members want." If 48% isn't enough of a majority for you, what more do you want?!

          1. It's a majority of the majority, silly rabbit. Lather/rinse/repeat as needed.

        3. If you know noscitur, and also can count to 50, it's clearly a joke.

      2. "voting rights"

        Can you name what that bill would actually do? Or just the title?

      3. "opposition to voting rights." oh boy, you made a funny.

    2. Manchin and Sinema both voted against Barrett. If they thought that vote would not hurt them politically, it would take a Bork-like shit storm to convince them to vote against Biden's nominee. Ditto for Murkowski and Collins, although Murkowski is up for reelection in 2022 which might change her calculus.

      1. That doesn't really make sense; Voting against Barrett hurt Manchin and Sinema with Republicans, who weren't supporting them much anyway. Voting against a Democratic nominee would hurt them with Democrats, unless the nominee were so far out there that their own states' Democrats would agree with them. Which would have to be pretty far out there, but given this administration, can't be totally ruled out.

        Sinema is toast at this point, I think, so she's just voting as she pleases. Manchin I suspect still thinks he can last out another term.

        Murkowski doesn't have to worry about surviving a Republican primary, now that Alaska has adopted a jungle primary system; She should be able to make it to the general election, and if she's not up against another Republican then, will probably win reelection.

        Susan Collins just got reelected, and has until 2026 regardless of how much she pisses off Republicans over the next few years. She's the most likely defection on the Republican side, just as Sinema is the most likely on the Democratic side.

        They may end up canceling out.

        1. Murkowski doesn't have to worry about surviving a Republican primary, now that Alaska has adopted a jungle primary system; She should be able to make it to the general election, and if she's not up against another Republican then, will probably win reelection.

          The only other serious candidate to have declared in Alaska is a Republican, attacking Murkowski from the Trump side.

        2. Manchin is holding a pretty strong hand here. WV went 68% for Trump in 2020, and Capito (R) got over 70% of the vote in her 2020 Senate re-election.

          Successfully primarying Manchin in WV would be political suicide for the Dems at this point in time. He is their only hope for keeping that seat Democratic.

          1. Yeah, Manchin's ability to continue to flourish in the midst of WV's stupendous surge redward has been fascinating to me for some time. I think it's a tribute to how long-term relationships and trust can trump blind partisanship -- in a population the Reverend would generally consider knuckle-dragging, backwater rubes, no less.

            1. As long as you don't violate that trust. The Democrats would like to use Manchin up on a few votes, and then throw him away, as they've done with many 'moderate' Democrats before. The main reason that it's difficult for any Democrat to run as a moderate in 'red' states is that long track record of becoming turncoats the moment their vote matters.

              1. How does a party throw away a senator? How does a party become a turncoat to a senator?

                And even if that is a thing, why would they do so when that senator is somehow a Democrat in WV?

                This fiction you're spinning is not holding together.

                1. "How does a party throw away a senator? How does a party become a turncoat to a senator"

                  1. Take a moderate Senator from a red or purple state.
                  2. Force that Senator to take an extreme partisan vote more in line with the voters preferences from a deep blue state.
                  3. This leaves the Senator with two options.
                  a. Cast a vote with the party, alienating his voters at home, and likely causing him to lose the next election
                  b. Cast a vote against the party.
                  4. In the case of b, the party then engages in widespread vilification against their own member.

                2. Maybe you recall that speech Clinton gave after the '94 AWB passed, when he literally praised members of Congress for sacrificing their seats to pass it? Because they'd run as pro-gun in pro-gun states, and then been somehow forced to commit political suicide to pass the bill.

                  1. You think Manchin is getting forced to do anything? Or Sinema?

                    Praising people for being statesmen and putting good policy before job security is something I wish we did more of.

        3. Well as a relatively recent Arizona resident I disagree Sinema is toast, she may not be able to win a Democratic primary, but she's got an excellent shot as an independent against a Progressive Democrat and a lackluster Republican.

          And while the Dems are livid with her now, a shellacking in 2022, and being faced with losing the seat in 2024 could change the calculus considerably.

          Biden didn't get the nomination because anyone thought he'd be a good president, he got the nomination because he was the only candidate that beat Trump in the polls.

      2. Just sayin', it seems like they have a lot of leverage here.

        1. Manchin might, if he decides to wield it, I personally wouldn't bet on it though. At end of the day this day no matter how far left a jurist Biden nominates, the court will still be 6-3 on the divisive issues, so its not going to be a hill worth dying on for either side

          As for Sinema, if she hopes to have any political career after the midterms she needs to keep her head down, she spent all her political capital on the filibuster fight

          1. Sinema is not up until 2024.

            It is however an easy win for her to confirm whomever so you are correct she will vote yes.

    3. There's zero chance that Sinema wouldn't vote to confirm. There's no Senate rules issue here. Manchin is less certain but only in that a very small number is many times more likely than zero.

  8. Before we all get into the weeds, on this, let's remember that the report is from NBC.

    1. Well, how did bit of nonsense 'don't trust the media' virtue signaling do for ya?

  9. Now is the time for the Republicans to point out that they have 50 senators, while the Democrats only have 48, and Judicial committee chair needs to be from the true majority party. If that doesn't distract from the vote fixing fiasco, nothing will. By the time that gets settled, the mid-terms should be over.

  10. Good news is that we will have another Justice.

    Bad news is that we can expect approximately 23 breathless Josh Blackman posts per day until that Justice is seated.


    1. After he gave up Twitter, he had to find an alternative outlet for his social-media impulses.

    2. He already has a second post about this!

  11. Prof. Blackman, how did you find the tweet that is the basis for this post?

  12. It's going to be so satisfying when Manchin blocks any appointment. But that's what Biden gets for sending Harris to attack Manchin *in WV* at the beginning of his presidency.

    The argument won't be too hard to make: with a 50/50 senate and terrible approval numbers and it being a midterm election, let the American people vote to see if they want Biden to nominate a SCOTUS justice.

    All of the left's rhetoric has shown Manchin he has no future in the Democratic party, so no real reason to be intimidated by them. Plus, running as a Republican will give him a lock on his senate seat as long as he wants it. In other words, there's no downside for Manchin.

    I hope he slips that final dagger right between the ribs. If any administration deserved it, it's the Harris-Biden administration.

    1. Manchin isn't blocking anything. He votes with the dems about 99% of the time.

      1. That was before the latest hate rhetoric against him. Your side didn't help yourselves and you may have made an enemy.

        1. Freaking liberal Bob from Ohio!

          1. Its a cross I must bear.

  13. Merrick Garland, anyone?

    1. Too late for him to continue pretending to be a moderate, now. And he's not a black woman, so he fails the current basic qualification for a Biden nomination.

      1. It's too late for him to pretend he's a moderate, but it's not too late for him to decide he is a Black Woman.

        Most of the Democratic Caucus would buy it.

  14. Who cares, its just a new fourth liberal.

  15. The nominee is going to sail through baring some unexpected scandal. I mean, there are a few moral Republican members of the Senate who understand they screwed up real bad by going along with McConnell's lying in 2016 about caring about American input for SCOTUS nominations. And make no mistake, this was a lie: if he ever cared about the American people having input he would never have let Barrett through DURING an election.

    1. Zero GOP senators think "they screwed up real bad" by blocking Garland.

      1. But they DO feel bad for advancing Barrett. Because again, it exposed them all as liars. Everything they said about Americans deserving a voice was exposed as a huge lie. It was indefensible based on the terms they set for blocking Garland. They all knew all that historical rule stuff was post-hoc justification for their central lie: that American voters mattered.

        Collins definitely does. She voted against Barrett. That's 50 without Manchin. Murkowski felt bad about it too, and only voted to advance cause she didn't want to "hold it against Barrett"

        And when I say screw up, I don't mean politically. I mean morally. Some obviously don't because they demonstrably lack a sense of morals, ethics, or integrity (Cruz, McConnell, Hawley) but not all of them have that problem.

        1. Voting against Barrett doesn't necessarily mean Collins is remorseful about blocking Garland, just that she didn't Barrett. It also doesn't mean she'd necessarily vote for anyone Biden nominates.

          Besides, we all know members of Congress do a lot of things when they know their vote doesn't actually matter one way or the other. In a 50-50 Senate I bet Collins would have confirmed Barrett, just like I bet had Manchin and Sinema not done it another Senator would have taken up the filibuster fight. And of course the less said about 6 years of "repeal and replace" under Obama, followed by 4 years of nothing under Trump, the better.

          1. You're misunderstanding what she's likely remorseful about. It's not about blocking Garland per se...its about the lie they told to justify it. The one she went along with. McConnell got on the floor and said the American people were perfectly capable of picking the next SCOTUS justice. That was clearly a lie. He never actually believed that. Because if he actually ever believed that, he wouldn't have been issuing statements about moving forward within hours of Ginsburg's death and the Senate vote coming mere weeks before election day.

            1. Incorrect. In 2016, you had a president at the end of his term and the people had voted in an opposition senate. It was clear they didn't want Obama making those decisions anymore.

              In 2020, you had a president running for his second term (not at the end, regardless of election outcome) and the people had given him control of the senate.

              Apples and oranges, I'm afraid, my friend.

              You're really an awful person and I wish you would leave this country.

              1. "You're really an awful person and I wish you would leave this country."

                Actually I am a good person, that's why I don't like this lie.


                He lied. Deal with it.

                An no I'm not going to leave the country. It's my country too. This country needs a lot of help to recover from the moral abyss that the Republican party has plunged it into in recent years. I'm going to stay and make it better, and you're going appreciate it.

                1. LOL

                  So arrogant. I will "make it better and you're going appreciate it". Get over yourself. You just post comments like everyone else here

                  Maybe your mom cares about your views, no one else does.

                  1. no one else does

                    False. Coworkers, supervisors, friends, etc. all care.

                    You also care, you know I'm right about you.

                    1. You are so full of BS, your piss is brown.

                    2. Wow, Bob sure does seem to care a lot about LTG's views.

                    3. Wait. Do you actually think my friends and coworkers don't care what I have to say about things? Because friends and coworkers caring about what each other think is an extremely normal thing. Unless, YOURS don't and you're generalizing from your experiences.

                    4. "Bob sure does seem to care a lot about LTG's views."

                      Mocking is not caring.

                2. Incorrect. You're literally the worst. You can't even tell two separate scenarios apart from one another. This is beside the point of whether McConnell was sincere or not. It's that you are fundamentally incapable of looking at two scenarios and spotting the difference.

                  And then you go vote, thinking you're informed and doing some great and noble thing. You are literally the embodiment of the best arguments *against* universal suffrage--even the concept of democracy in general.

                  1. You're literally the worst.

                    Impossible, because there are much worse people out there. Unless you want to say I am a worse person than Assad or something.

                    "This is beside the point of whether McConnell was sincere or not."

                    Um no. That's the entire point you're responding to. You're using post-hoc justifications about electoral timing, when I think that is all BS to cover up the fact that the first thing they went with was a lie.

                    "And then you go vote, thinking you're informed and doing some great and noble thing. You are literally the embodiment of the best arguments *against* universal suffrage--even the concept of democracy in general."

                    Oh, talking to a fascist probably. Good-bye forever.

                    1. I honestly think you may be worse than Assad. The scariest people are the milquetoasts who think they're doing good.

                      No, I'm responding to the fact that you can't even separate the different scenarios from 2016 and 2020. To you, they are exactly the same, which is what makes you preposterously dangerous.

                      LOL. Define fascism.

                    2. Fuck yeah!
                      Perspective is for the WEAK!

                      Densely packed Hitlers everywhere, I tells ya.

              2. If one has the ability to be intellectually honest, then you come to the conclusion that the only legitimate Trump pick was Kavanaugh. The other two are there by acts of rank political fraud. I'm actually surprised that Roberts never peeped a protest at the sight of his court being ruined in this way.

                1. Gorsuch could have retroactively been legitimized by not pushing Barrett through.

                  1. Nothing will ever legitimize Gorsuch. He's the changeling. The guy with an asterisk on his name for the rest of his ignominious career.

        2. Collins' vote on Amy was solely because she is pro-abortion.

          Murkowski's reluctance is also based on Amy being pro-life but she is from a conservative state, not Maine.

          Neither has "moral" qualms about the process.

          1. Yes they do. You just don't think they do because you have no moral qualms about ANYTHING.

            1. No they don't. You have zero evidence for your fantasy.

              1. And you have zero evidence for your fantasy that everyone is immoral as you are.

                1. I have the evidence that Collins and Murkowski are "pro choice" and Amy is not. That is more than you do.

                  1. I have evidence that human beings don't like lying.

                    1. Humans sure do a lot of it though.

                    2. And they feel bad.

                    3. That was one of the reasons Trump's lying was so notable - he did so on random stuff even without any real incentive to.

                      That's weird because, as LTG noted, most humans don't like to lie.

                    4. "most humans don't like to lie."

                      They say they don't like to lie. A lie itself usually based on the sheer volume of lies each human says in their lifetime.

                    5. I mean it requires some level of caring. I don’t bother mocking Behar cause I literally do not care what he says.

  16. Maybe Biden will appoint Kamala Harris. She checks grievance/identity boxes and this is the opportunity to get rid of her and pick someone better at politics for VP.

    1. I've said before that at this point Harris's only "out" to continue a political career is to take a nomination to SCOTUS, however it would require admitting that she's not up to the task of being VP (or anything higher) and I think she's still committed to the "its all sexism" angle

      Besides, Biden would never be able to confirm a replacement VP without a tie breaker in the Senate

    2. Always great to see the White, male bigots drawn to a White, male, right-wing blog ranting about "grievance/identity boxes."

    3. You may not be as good at understanding the Democratic Party as you think you are.

      1. The fact that Biden picked Kamala as VP to begin with suggests I am.

        1. No it actually doesn't because you don't seem to understand there are different politics and needs behind VP picks and judicial picks.

          Harris is on the wrong side of 55, hasn't done a judicial or legal academic job ever, didn't go to a T-14, and didn't do all the fancy clerkships.

          Brown Jackson is only 51 and has all those other credentials. Kruger is 45 and also has those.

          1. Age and resume are not political. Maybe you think Sarcastr0's comment meant something different than I thought.

            1. You thought you kamala would be picked for scotus. Sarc said you don’t understand the Democratic Party. Which is correct if you think that biden will pick Harris.

              More broadly if you actually think this…you don’t understand judicial politics. Oh and the WH has already thrown cold water on this by saying a current judge is getting the pick.

              1. I didn’t say I thought that

      2. It's incredible how many people think weird things like this. I mean it's going to be from one of the obvious picks (Brown-Jackson, Kruger). Just like how Obama went with the obvious picks: Sotomayor was obvious at the time. Kagan definitely was. Garland was when the Senate was GOP and Obama thought shame and compromise were possible with a McConnell led Senate. Just like how Trump went with the obvious picks. And Bush (except for Meirs lol).

    4. She isn't confirmable, the Senate all know her. And it would look terrible if she had to break the tie on her own nomination.

      Second McConnell probably wouldn't agree to confirm a VP, and the Dems lose control of the Senate, and if the Republicans take the house they will be next in line for the presidency.

  17. There will probably be drama. Hopefully speculation about what that drama will be is probably wrong.

    I, for one, am excited about McConnell's upcoming pretzel logic.

    1. Mitch is not going to oppose her on process grounds at all. Its a status quo pick.

      Absent a serious scandal, Jackson would get around 5 GOP votes, Kruger 5 or so more than that.

      1. It will be difficult for McConnell to say he's not opposing her. Or even that she's legitimate.

        The right wing voters demand maximum, irrational opposition to all things, and they define the party nowadays.

        But knowing what I just said about speculation, maybe I'm wrong!

        1. Mitch will vote against her, yes, it just will be based on traditional GOP politics ["radical leftist " "too liberal" etc.] and not on process.

          1. He'll be pressed on more than his personal vote. And he'll be asked about the legitimacy of the process.

            A bed he has made.

            1. I actually sort of agree with Bob that McConnell isn't so stupid as to go down that path. A process argument would be too stupid even for him. He's been there long enough (and has over 4 years left to go) that he can denounce Trump when he needs to, give tacit support to the Jan. 6 committee, vote for infrastructure etc.

              So he doesn't need to cave into the most irrational arguments.

              And on judicial picks...I don't think he's raised hackles about blue slips going away for Circuit judges under the Democrats like they did for Republicans. Only the biggest morons (i.e. Blackburn) have gone for that. So I think it'll be the "she's radical" thing.

              That being said there is an extremely good chance that some GOP Senator who voted for Barrett complains that it's disgraceful Biden is "ramming a nominee down our throats" in an election year. Top takers for this position:

              Blackburn (most likely, would bet a paycheck on this)
              Feinstein (I kid I kid)

              Not Tuberville because he probably doesn't realize it's an election year.

              House members don't count on this because that's too easy.

              1. "too stupid even for him"

                Mitch is many things but in no way stupid.

                It is stupid to say he is stupid.

                1. Yes he’s not stupid. But he definitely can and will tolerate/endorse stupidity if it’s to his advantage to do so.

        2. maybe I'm wrong!

          Mr. Hart! That is the most intelligent thing you've said today. You may take your seat.

    2. He will announce the latest wrinkle in his theory of Senatoriality, that they may not confirm a Supreme Court nominee in an election year if the vote might need a tiebreaker.

      1. The Senate has never confirmed a nominee with Mars in retrograde

        1. You might want to actually look up what McConnell said, not the MSNBC edit.

          If the president and senate are held by different parties AND it's an election year, no vote.
          If the president and senate are held by the same party it's always a vote.

          There will be a vote this year, if the Dems can get Manchen and Sinema on board.

            1. Were the White House and Senate help by different parties and was it an election year when Scalia's seat became vacant?

              1. That’s a post hoc justification that they needed for the moment when they would inevitably decide that Americans don’t deserve a voice. If Americans are supposed to be involved in scotus picks during election years…the party alignment of the president and senate doesn’t matter.

          1. "If the president and senate are held by different parties AND it's an election year, no vote."

            Can you say Anthony Kennedy, 1988?

            1. You prove my point. Reagan nominated Kennedy November 11, 1987.

        2. The Senate has never confirmed a nominee with Mars in retrograde

          You have the almost supernatural ability to be wrong even when you are joking ....

          Mars entered retrograde on Sept 9th 2020 and left retrograde Nov 13th 2020. Amy Coney Barrett was nominated on Sept 29th 2020 and confirmed on Oct 26th.

          1. Pretty proud to not care enough about that to know.

      2. "if the vote might need a tiebreaker"

        Lawrence Tribe would agree:

        "While the vice president has the power to cast a tiebreaking vote to pass a bill, the Constitution does not give him the power to break ties when it comes to the Senate’s “Advice and Consent” role in approving presidential appointments to the Supreme Court.

        You don’t have to take my word for it. Alexander Hamilton said the same thing way back in 1788, in Federalist No. 69: “In the national government, if the Senate should be divided, no appointment could be made.” ..." Boston Globe [paywalled so no link]

        1. Do you think the Federalist Papers are only available from the Boston Globe?

          1. No, I think Boston Globe op-eds are only available from the Boston Globe.

            1. You only quoted the op ed to quote the Federalist Papers though...

              1. No. I got the quote from here.


                It's Tribe's laughable point [I'm sure now abandoned] I was pointing out. But once gain you assert you know why other people do stuff.

              2. See those two little lines at the beginning of the sentence "While the vice president..."? They are called quote marks, and they are used to indicate the beginning of something quoted form another source. In this case, quoting Lawrence Tribe, and his view of the role the VP plays in breaking ties. Not quoting the Federalist (in support of this position) until the next paragraph,
                A little more care in reading, a little less snark, and you avoid looking like a fool.

                1. A little more care in reading, a little less snark, and you avoid looking like a fool.

                  In Sarcastr0's case that ship sailed a long, long time ago.

          2. I would add that historical practice doesn't seem to back up Hamilton on this point: the Vice President does break ties on presidential nominees (Harris has done it several times) and I can't see any reason why the Supreme Court would be different.

            1. I agree with you there, the constitution just says the VP gets a vote if they are equally divided.

              So any 50-50 question, the VP couldn't vote to get the Senate to the 2/3 needed for a constitutional amendment or an impeachment.

            2. The text doesn't back him up. There is no carve out for nominations in the Constitution.

              "The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided."

              1. The fact that Hamilton may have wished it to be different doesn't make it so.

        2. "Lawrence Tribe would agree"

          Mike Pence cast a tiebreaker vote to confirm Jonathan Kobes to the 8th Circuit in 2018, so Tribe's argument, which was not specific to SCOTUS nominations, is contrary to Senate precedent. Republican Senate precedent, in fact.

      3. We all know what McConnell's theory of Senate process is, and it's the same as Schumer's, and Reid before them: the Senate will do whatever the Majority has the votes to do.

        Majority leader wants a vote and has the votes then there will be a vote.

        Majority leader doesn't want a vote their won't be one even if the nominee could get confirmed.

  18. I bet Breyer was as just as surprised by this announcement as the rest of us were.

    1. They just showed him his picture on Hillary's Tantalus field device.

  19. The people actually making the decisions will possibly pick the angriest of the contenders, may Pseudo-Governor Abram's sister. Then we can have two angry minority women on the bench who can spew venom and attract zero support from the right and center. It will be up to Kagan to try and be a reasonable liberal/progressive voice on the Court.

    1. A post you like so well you made it twice.

      Seems like you got hypothetical angry minority women on the brain...and you like it.

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