Justice Antonin Scalia died in February of 2016, a replacement was nominated in March of 2016, and because Scalia's seat had become vacant during an election year, the Senate would not even consider a nomination from the president [0].
McConnell immediately clarified his position was "the Senate shouldn't consider a nomination in an election year if it's controlled by my party and the president isn't in my party" -- no kidding, this was his actual clarification.
That is, in fact, the actual practice. The constitution splits the appointment between the presidency and the senate. When the same party controls both, vacancies are filled immediately. Otherwise, the party controlling the senate can exercise its heckler’s veto: https://www.nationalreview.com/2020/08/history-is-on-the-sid...
What happened with Garland had happened numerous times before:
> In short: There have been ten vacancies resulting in a presidential election-year or post-election nomination when the president and Senate were from opposite parties. In six of the ten cases, a nomination was made before Election Day. Only one of those, Chief Justice Melville Fuller’s nomination by Grover Cleveland in 1888, was confirmed before the election.
By contrast, if Trump doesn’t put up a nominee, it will be literally unprecedented.
What happened with Garland was new in that the Republicans refused to hold any hearing or vote on the matter. They did not violate any laws with their refusal, only norms. I don’t know why no nominations were made before Election Day in 4/10 cases; that may have been another lesser norm, or the vacancies may have been closer to the elections, or both.
In any case, the refusal was a further erosion of any semblance of working towards the good of the country with people of opposing ideologies. The same goes for the increased frequency of government shutdown threats and occurrences.
Really, if those practices had stood for so long on norms, they should have been codified into law already. But the Congress, regardless of party, doesn’t like to cede any power. It’s equally unlikely that if the Democrats take control they’ll do anything about it either. I’m vague on what it would entail—it’s been a while since I read up on it—but another hurdle might be that it would take an amendment rather than a law. Regulating what the Congress does is explicitly harder than making laws for the rest of us.
Congress can't meaningfully restrict its own actions by passing laws: any law passed can be repealed by a future Congress by the same procedure as long as there are majorities.
Which isn't to say that there's no point in purporting to do so: you may hope to require a politically costly public vote (avoidance of which was a significant feature of the Garland no-hearing: with nobody else "on the record," outrage focused solely on the politically-safe McConnell). How effective this is isn't really clear though: voters seem to usually want "their side" to take full, uncompromising advantage when they are on top, and increased polarization means that the fear of alienating independents/moderates isn't as much of an issue, because there aren't any of them left.
Rules and procedures such as the filibuster are weaker still, as they require only a majority of a single house, and no cooperation from the President. We've seen that borne out as the parties out of power became more likely to use the Senate's procedures to stall the party in power, and the fairly quick recent dismantling of those procedures in a bipartisan fashion.
Constitutional amendments can do all sorts of things and their high barriers to passage make them solidly entrenched, but it's very difficult to imagine any issue commanding the necessary supermajorities to pass an amendment on any subject in today's America.
As for Democrats or Republicans in power after the election curbing this kind of partisanship, I wouldn't bet on it. There may be some pushes to try to codify
The link does not support your claim (or its own). The Senate did not consider and reject Merrick Garland, it refused to consider any Supreme Court nominee by Obama.
Of course, I'm splitting hairs between "refused to consider" and "voted against". But it's similarly splitting hairs to say that the party of the president makes meaningful difference as well.
Frankly, there's no good faith interpretation of McConnell's stance here as anything other than (ab)using his power to shape the judiciary.
> But it's similarly splitting hairs to say that the party of the president makes meaningful difference as well.
Of course it does! The Constitution splits the nomination/confirmation process between two political branches. The process is supposed to be political!
You have really insightful legal comments here most of the time but anyone supporting Mitch's 100% hypocritical stance on this is laughable.
He will do whatever it takes to hold on to his minority power. He did it with Obama and has already hinted ~2 hours after RBG died he'll happily do a 180 on his previous position this time around when he has the chance.
In this situation in 2020, I agree, they would. In 2016? I don’t see the reasoning that they would have.
The reality of the situation is that in the US one party constantly pushes boundaries and test limits. The other party then adjusts to attempt to counteract that. Yet it’s sold as “both sides are just as bad as each other”
Democrats literally threatened to pack the Supreme Court so they could get expansive interpretations of the Constitution to push through the new deal. They are constantly attacking structural features of our government and institutions, whether it’s chipping away at federalism or creating fourth branches of government out of whole cloth.
> Democrats literally threatened to pack the Supreme Court so they could get expansive interpretations of the Constitution to push through the new deal. They are constantly attacking structural features of our government and institutions ...
Court expansion hasn't happened yet, but if it does:
1. Them's the rules; sauce for the goose, sauce for the gander. (Or: Live by the rules, die by the rules.) (Or: Karma's a bitch, ain't it?)
2. What you call the "structural features of our government and institutions" are meant to serve the people, not vice versa. It's idolatry to put those features on a pedestal and declare them to be immutable. Presuming adequate protection of genuine minority rights, it's not illegitimate for a democratically-elected government to use lawful means to try to restructure existing institutions in pursuit of the majority's felt political needs.
This is complete nonsense. Your comments on this subject seem to be 100% ideological not based in reality unlike most of your other grounded legal arguments on other subjects.
I’m curious which parties you’re referring to. Conservatives are called that literally because they want to conserve something from the past.
In this case, the left is marching forward with all sorts of new policies—often ostensibly to deal with a societal problem, but causing more problems because the policy does not derive from first principles.
The power is split across branches, not political parties. And I think you're forgetting that Senators are elected in by the people.
I see a common irrational theme of "let's change the rules because they didn't work out in my favor this time". I don't understand the logic behind this.
Senators originally (prior to 1914) were not directly elected by their constituents... the founders set up the Senate to be the more "responsible" "Upper House"and were set to represent the interests of each state and appointed by each state's democratically elected Governor. The intention of senators having longer terms (6 years vs 2 years for House members) in addition to being appointed by each state's Governor and state legislature was so Senators would not be as directly affected by electoral politics and would be forced to actually work together. I think the 17th Amendment to the Constitution was in retrospect a pretty horrible decision that has not added much democratic value to our system.
Well look at how governors have been handling the pandemic. Most of them seem completely one sided in terms of their response, unwilling to compromise and stretching the limits of their power. There isn't a "let's see how it's working and adapt based on new information" mindset, it's a "my way or the highway" mindset. For example, I live in PA and our governor's orders were recently found to be unconstitutional[1].
If anything, governors should have less power, not more. Decisions should be made on a smaller scale, states are too big for a one-size-fits-all model. And I certainly wouldn't want governors hand picking our senators.
Unsurprising, given the judge who found the orders unconstitutional was a Trump appointee. The past three and a half years Republicans have spent packing the courts seriously hurts the credibility of the legislative branch.
As an aside, Breitbart is one of the least trustworthy sources, and citing it does not help your argument.
Details on why you don't like the judge and which media outlet I referenced (i honestly just googled the story and grabbed the first one I saw) digresses from my point. And fyi once you digress from the main topic and shift to sub-aspects (without actually addressing the main point), it usually means you're arguing in bad faith, or your cognitive dissonance is kicking in. It's a mechanism used by closed-minded and stubborn people...Food for thought.
I'm not digressing from your point, I'm directly rebutting it. You claimed that your governor is abusing his power, offering as a supporting argument a ruling that his orders are unconstitutional by an ostensibly neutral third party. I'm attacking your supporting argument by calling the neutrality of that third party into question.
My own opinion is that the orders are constitutional.
I can read. I was referring to "The process is supposed to be political!" And by political, the implication is partisan, because otherwise it would be true by definition, and thus an uninteresting claim not worthy of ending in an exclamation point.
Political doesn’t mean partisan. It means characterized by political considerations, rather than rules. Partisanship is one aspect of politics which the founders wanted to avoid. But they always contemplated that the Senate majority and Presidency might disagree for political reasons.
Sure — and if the Mitch McConnell's objection to Merrick Garland's nomination had been political, it would have been one thing. But it was nakedly partisan: he refused to consider any justice that Obama would nominate, with no real reasoning beyond "we want a Republican to have a chance to fill this vacancy".
> they always contemplated that the Senate majority and Presidency might disagree for political reasons.
They did. The danger to the country is actually when they agree.
What happened here is that the Senate refused to compromise, and simply put the government in a holding pattern until they could get a more "agreeable" executive in office. Is that the way separation of powers was intended to work? I think not.
The National Review became dishonest propaganda some time ago. They are going back 150 years to find a precedent and ignoring many more recent precedents.
Explain to me what’s “dishonest propaganda” about the National Review article?
1) Going back to the 1800s is routine in the legal world to understand what is accepted practice in our system. After all, the relevant rules haven’t changed since 1789. Aren’t examples from people who created this system particularly relevant to understanding how it’s supposed to work?
2) The SCOTUSblog article goes through the exact same examples as the National Review article for the 20th century. The only difference is that the National Review article looks at whether different parties control the Presidency/Senate. What is “propaganda” about that? The Senate and Presidency are political branches that are supposed to be at odds, potentially. Is there any reason to assert that this political rivalry shouldn’t extend to Supreme Court appointments? Is it “propaganda” to even posit the idea?
The article I posted also looked at what parties controlled the Senate and Presidency and quoted more recent precedents where the parties were split, and the president got to appoint.
Moreover, stopping a vote entirely? That's unprecedented. Had there been a vote on Garland, he almost certainly would have been appointed. Many of the moderate Republicans in the senate, facing elections, would not have been able to justify voting him down to their constituents.
For the National Review to leave those pieces out is dishonest. I'm also not just referring to that article. The National Review has been dishonest propaganda for a while, making dishonest arguments that manipulate the facts (usually by omission or careful selections as here, but occasionally outright lying) to justify the actions of what has become a fascist party.
The National Review has been nothing short of reactionary propaganda from its outset. They vehemently opposed the Civil Rights Movement in its era, including running unsigned editorials with such lovely sentiments as “In the Deep South the Negroes are, by comparison with the Whites, retarded”
Democrats were literally the party of segregation when Buckley wrote that (there would have been no New Deal coalition without the support of segregationists). He was vastly out of step with Republicans at the time, and he did a 180 by 1965, the year after LBJ flipped the Democratic Party on the civil rights act. It’s a shameful period of American history, but unless you’re going to stop voting Democrat over what some Democrats said in 1957...
I’m not a Democrat and we weren’t talking about voting anyway. And these are the kind of sentiments Buckley continued on with after 1965, so please spare me the “different times”’pleading:
> In a 1986 New York Times op-ed (3/18/86), Buckley urged that ‘everyone detected with AIDS should be tattooed in the upper forearm, to protect common-needle users, and on the buttocks, to prevent the victimization of other homosexuals.”
How is it “cynical” to point out that where a split senate/presidency exists in an election year, the senate has historically used its confirmation authority to postpone filling the vacancy?
And the response is to demand something that actually would be unprecedented: packing the senate? Which only Democrats have done before, under circumstances where it was obviously to coerce the Supreme Court into deciding cases differently. Acting like Democrats hold the moral high ground here is utterly absurd.
If the Democrats don't hold the moral high ground, why is McConnell lying about his rationale? He didn't say "The majority can do what ever it wants, and that's moral", he made up rationales that change to as the facts do.
The idea that a Supreme Court opening should never be filled when the President and Senate are opposing parties is utterly absurd.
It's true that the Constitution wasn't written like Ethereum to preclude all attempts to undermine it with bullshittery like refusing to even put matters up to a vote. That doesn't mean it's at all moral to ignore it.
Also, was "Packing the Senate" a typo? FDR threatened but did not pack the Court.
"Packing the Senate" is a Republican tradition (not that the parties mean much consistently, going back centuries), which even a blatant partisan couldn't avoid admitting:
Yes, segregationists were Democrats during the New Deal, but so what? The parent described slaveholders as "the spiritual inspiration of modern Republicans," and we both know what they meant: the "Southern Strategy" Republicans used to flip the South toward them by consciously appealing to racism.
The point is that the parent takes an extremely tenuous connection between Republicans and slaveholders, while denying the much more overt connection between Democrats and slaveholders and segregationists.
There is this notion that the parties "flipped" sometime in the mid 1960s that's simply false. Republicans were from the inception the party of religious wackadoodles and capitalists. Democrats, at least since right before the civil war, were the party opposed to big business, banks, etc. The segregationists weren't just Democrats. They were New Dealers. They were New Dealers because the south was agrarian and at odds with big business (over tariffs) and banks (over monetary policy and debt). When Wallace broke off in 1968 to run on a segregationist ticket, he touted his pro-labor background. And as a result of that coalition, the New Deal and related programs were inextricably tied up with segregation: excluding most Black people from social security, creating redlining through the FHA, etc. See: https://jacobinmag.com/2019/06/rothstein-segregation-color-o... ("Walker’s second point overlooks that the New Deal did not merely concede to private bigotry but pursued independent racial policies that did much to create a segregated landscape that persists today.")
The South didn't really flip until Clinton. (Reagan won it, but he won everything.) Carter decisively won a bunch of southern counties that were 95% white. And ultimately it did so not because of the "southern strategy" but because southern states industrialized, and Republican ideas of low regulation and low taxes were great for attracting jobs and industries from northern states.
There are a number of highly concerning posts you've made attempting to normalize a flagrant attack on the rule of law across this thread, but this post in particular is extremely difficult to reconcile with the principle of charity.
What "charitable" reading is there of the statement that "slaveholders are the spiritual inspiration for modern Republicans?" I'm simply pointing out that slaveholders and segregationists are the actual ancestors of modern Democrats. Not just because they share a name, but for concrete economic connections that endure to this day. Southern agrarian interests were opposed to the high tariffs Republicans imposed to protect northern industry (because they were exporters of unfinished commodities), and centralized banking (because they debtors). White labor unions excluded Black workers, who were competition.
Sophistry is overlooking by handwaving about the "Southern Strategy."
No. Sophistry is ignoring 50 years of post-Nixon/Goldwater era Republican political strategy.
It's tremendously difficult to believe someone could live in the states and not have any idea this was going on.
Even former RNC chair Melhman was fairly straight to the point on the issue in 2005: "Some Republicans gave up on winning the African American vote, looking the other way or trying to benefit politically from racial polarization." Nothing has changed since then.
Any Democrat who accepts a lecture about the "moral high ground" on the subject of the Supreme Court is the Republicans' useful idiot.
The Roberts Court disenfranchised millions of Democratic voters by gutting the Civil Rights Act. The fight over the Supreme Court's composition is a fight over pure electoral power.
Why would they need to pack the court? They already have a political majority, do they not? No need to break a norm when it confers no additional benefits (as the breaking of the previous norms did).
> the party controlling the senate can exercise its heckler’s veto
I'm trying to think of a plausible vehicle for arguing that if the Senate refuses to vote on a nomination within a reasonable time, then that refusal (i) constitutes a waiver of the right to withhold consent and therefore (ii) is deemed consent.
Biden's speech was just saying that the nomination shouldn't happen during an election. I don't think he ever said it couldn't happen during a lame duck session of the Senate.
Let’s be clear. A lame duck is one that has been shot, is still in flight, but is headed down. In politics, it refers to after a sitting representative loses an election (or term limit ends) but before before the term ends.
Obama was not a lame duck when Scalia died. McConnell et al redefined the term to suit their needs. As they will no doubt redefine it now.
He was just saying that the nomination should not happen during an election year and then he expands that he won't consider conservative nominees from the conservative i.e. different party president. It's just 4 minute video of several speech fragments, does not take long to watch and be informed.
I don't know that in the current political climate, the democrats would extend the same courtesy if it happened under their control of the Senate and White House.
Lately I see a lot of people saying things like “this particular example of real behavior is bad and conflicts with my values so should be electorally punished, but my mental model of the other side tells me that they would probably do the same thing if they hypothetically got the opportunity, and so I’m not going to uphold my values.”
I’m surprised that most people in america didn’t see this coming. It’s been clear that “winning” has been the strategy for the republicans and they’ve been doing it consistently for decades now.
They’ve shown up at elections, they’ve shown up for local elections, they’ve worked for every single advantage in power they could get. I mean these are the chaps who suffered a massive electoral defeat to Obama the first time and found their mettle by saying “one term president” like a mantra. They converted that into a fight for every micro meter.
Eventually anyone m would also realize that “winning” (at all costs) is the strategy that works and adopt it. The best strategies get adopted by market players.
The media environment for the past many decades now ensures that bipartisanship won’t work either.
Maybe it’s an incorrect cultural reading on my part,
I don’t disagree with your characterisation, but I do disagree with the idea that it is republicans alone. Unfortunately this has been the way both parties have operated for a long time. The democrats have also done their fair share of abuse of power just in the last 4 years.
The use by Obama of the FBI to investigate his political opponent during a presidential campaign, on a basis of an improbable opposition research report is unprecedented and to say the least, controversial. Imagine the outrage if any republican president had done that.
Not saying this is only the last 4 years. I agree, at least 30 years. But no, it is not the action of a single party.
Was there any indication this was Obama directing the FBI to behave this way, or that this was an established pattern of behavior? There’s a very important difference between a mistake or an error in judgement vs an established pattern of behavior and engagement of illicit behavior by the president himself (as with Trump offering a pardon to Assange to deny ties to Russia in the DNC hack after failing to have Ukraine fallaciously smear Biden).
Sure, but the argument that the Senate shouldn't approve or even consider a Supreme Court nomination in election years because voters should have a voice was made by Mitch McConnell, at a time when not approving a presidential nominee suited him.
I don't think anybody can argue in good faith that it is equally incumbent upon the Democrats to act in a manner consistent with principles argued for and precedents set by Mitch McConnell.
I don’t think anyone could argue that the democrats are acting in good faith pushing for delay now while having pushed for expedition in 2016. Both parties want to shape the supreme court.
I am more annoyed by the fact that the supreme court has become a political arena. Making laws should be the responsibility of the elected legislator. A court, any court, should merely arbitrate on the conformity of legal disputes to these laws. If they acted that way, no one would really care who gets nominated to the supreme court. It is because the supreme court has taken the habit of ruling on matters that should be left to the legislator and effectively to make new laws that it has become a bitter fight for nominations.
I see the same power grab happening in Europe and am equally worried about it. No power should be given without accountability.
Yes, that's true. But it's important to note that Republicans deviated from this process 4 years ago and will now just resume business as usual while being a lot closer to the actual election than in 2016.
> If they acted that way, no one would really care who gets nominated to the supreme court.
How could this be done? Political issues are in front of the court every day and minute. This makes it immensely political. How could then those mere arbitrators be non-political?
It was always political. It will always be.
> It is because the supreme court has taken the habit of ruling on matters that should be left to the legislator and effectively to make new laws that it has become a bitter fight for nominations.
Uhm. You know this is also something that has been going on forever, especially in every "common law" system.
And in the majority of those cases the SC does only instruct the lower court on that specific case, refraining from creating new law as much as possible.
France is a "civil law" country. Courts there cannot "make new laws", they can only invalidate them. (And as far as I know this applies in general to all civil law countries.)
> France is a "civil law" country. Courts there cannot "make new laws", they can only invalidate them. (And as far as I know this applies in general to all civil law countries.)
The German Supreme Court has, on two occasions, declared new constitutional rights: the right to informational self-determination (when deliberating a census process law) and the right to integrity of data processing systems (when outlaying voting computers). I don't know if that counts though since technically they argued that other constitutional rights implied these rights (but weren't mentioned explicitly because the German Basic Law was drafted in 1949).
Well, clearly both parties seem to have expectations that the court will rule on controversial matters like abortion. The fact that it also declines to examine many other cases doesn’t really change that.
Sure, and controversial laws were submitted for constitutional review everywhere around the world (where there are constitutional courts). And picking judges was always a political thing. Just as picking the top prosecutor. And so on.
What's so surprising about that? It's not so much a "rule" as a statement of political fact. Now that Supreme Court has become a de facto legislative body, no nominee has a chance of getting through when the presidency and Senate are not controlled by the same party.
The reality is that if we had a Democratic President and Senate, nobody on the left would be arguing that we have to hold off until the election. Chuck Schumer would no doubt be insisting that the Senate "do [its] job", as he did in 2016. [1]
It's hard to fault McConnell for doing precisely what he was elected to do -- confirm conservative judges and justices.
If you think McConnell has a monopoly on hypocrisy I have a bridge to sell you as well. McConnell took both sides of the argument (delay when convenient, expedite when convenient), the democrats opposed him on both occasions. If this was a moral discussion, then both parties are equally guilty of hypocrisy.
Now if you think that political appointments are a moral matter rather than a balance of power within the constitution matter, it's not a bridge that I have to sell you, it's a planet.
I think the problem is that you cannot use one strategy one time, and another the next. If he’d elected to delay like before, nobody would have complained. If he’d not sabotaged the last nomination, nobody would have complained now either.
His point was that the WH and Senate shouldn't contemplate a SCOTUS nominee in an election year if they are controlled by opposite parties. Not hypocritical as that's not the case this time.
That's the way he's reframing the point now. There was no mention from 2016 that I can find where he mentioned anything about opposite parties: his argument was entirely "it's too close to the election and the next president should be the one who gets to appoint the next Justice."
That's what was given to him in 2016 by the Senate which holds the power of giving or not giving a vote to the WH nominee according to the constitution:
2. If dems wanted their adversaries to respect unwritten norms, maybe they should have refrained from baselessly accusing the nominees of gang rape (Justice Kavanaugh, Clarence Thomas).
3. A SC Judge vote needs BOTH WH and Senate. That was not the case in 2016 regardless of who said what. That is the case this time. It's the President's prerogative to nominate, and the Senate's prerogative to confirm.
4. This time, it would also most likely be a contested election. So not having a full supreme count will be a disaster.
Btw, I am NOT a fan of McConnell. But this case is very different.
I know it doesn't mean much, but I filled out a plea to both my Republican senators and Mitch McConnell's contact forms to respect the McConnell / Merrick Garland precedent in 2016. Obviously they've explicitly said they wouldn't, but it doesn't hurt to try.
McConnell has already publicly stated that he's bringing a nominee to the senate floor. You didn't think he'd have consistency and integrity even with his own precedent did you?
The precedent set was that the Senate can overrule the president. That precedent will be followed.
I don't think anyone misunderstands the situation - McConnell is going to do whatever is most expedient to get a Supreme Court composition that he likes. Any specific justification is mostly cosmetic - Senate has the power, and the controller of the Senate uses the power.
That was not the precedent. The precedent was to “allow the country to decide.” Drop the pretext. His side won. Screw the other side. Just have some integrity and own it.
That does not form a legal precedent. What you refer to was a political move and not a legal action. The Constitution governs this, not how people previously voted or blocked votes.
I believe the first time a SC nominee was blocked was Roger Taney in 1835. This is politics and happens, as a general principle, regularly by both parties.
No, and No. This is how the Senate works. What people are crying about right now is a standard of proceduralism that is completely made up and has never, ever been what either party believed in. Do you want to win? Good, welcome to democracy.
It's not. Mcconnell in 2016 declared it improper to vote on a nominee in an election year and now he says it can be done less than 6 weeks before an election. Yes it is within his authority and breaks no laws but the US Senate has traditions of decorum and fairness that he is trading for a short term win to the detriment of the country. We can't send him to jail but we can certainly be upset.
In 2016 the senate and the White House were held by different parties. Since SCOTUS nominations come from the executive, and are seated with advice and consent of the Senate, what McConnell did is not only normal it’s perfectly in line with a century of precedent. The idea that it was out of line, or against some nonexistent norm, is a narrative invented to make people feel better and discredit the court in the eyes of the public.
Prior to this Senate session, SC nominees could be filibustered. And every nomination prior to Brett Kavanaugh had bipartisan votes. The Senate is as responsible as the President for keeping the SC staffed with competent jurists. The role is meant to be apolitical. The first salvo was the nomination of Robert Bork by Reagan. He was a terrible choice but was replaced by Kennedy who was confirmed 97-0. Even Clarence Thomas got 11 Dems to vote for him. Mcconnell refused to even hold hearings for Garland or take a committee vote. That's an abdication of his duty.
Since the Senate was held by a different party, senators could have voted against Obama's candidate, couldn't they? But they didn't; rather, Garland wasn't ever brought to the Senate for a confirmation vote.
Because McConnell didn't care a bit about the people expressing the next Justice, he was more simply scared as fuck of losing that vote despite theoretically having a majority.
Since this is HN I will paraphrase Bryan Cantrill: "Do not fall into the trap of trying to anthropomorphize McConnell. You need to think of him the way you think of a lawnmower".
McConnell was given the power to do that by the rest of the Senators who put him in that position.
The narrative that Garland would have been confirmed if only he’d gotten a vote assumes that McConnell didn’t have the support of his caucus in what he did. That’s an incorrect assumption. They could have removed him and done what they wanted to do if there was some groundswell of support for Garland in the Republican Party. There wasn’t, they supported McConnell, and Garland wasn’t brought to a vote. That’s just how politics works.
It was a new rule, concocted at a moments notice, and discarded the moment it outlived its usefulness. That latter moment was today. It was the definition of abuse.
I was responding to the request, "Please tell me the last time a democrat-controlled senate confirmed a Supreme Court justice for a republican president in an election year."
If you're trying to be thorough, though, you should probably mention that Reagan's first selection for that seat was controversial because of his involvement in the the post-Watergate "Saturday Night Massacre," as well as the general suspicion that he would try to reverse Roe v. Wade and other civil rights-related rulings of preceding decades. Reagan's second selection withdrew his name from consideration before even being nominated, so I'm not sure why he's even relevant here.
I get that you're trying to make a political point, but there's simply no evidence that Democrats would have behaved like McConnell's GOP (perhaps more aptly described as the post-Gingrich GOP) did in 2016.
Democrats blocked Bork for an article he wrote 25 years before, which raised the libertarian argument of whether Congress should be able to regulate racial discrimination by private parties. It is to this day a challenging topic for even liberal libertarians, because those laws rest on a sweeping interpretation of the interstate commerce clause. But Democrats used that article to defame Bork as a segregationist. The second nominee withdraw his nomination after it came out he used marijuana, after what happened to Bork. So yes, Democrats were not in a position to play that cars a third time against a wildly popular sitting President.
There is ample evidence that Democrats would have behaved like McConnell did. For example, their threats to pack the Supreme Court in 2019. (After their threats to pack the Supreme Court under FDR gutted large parts of the constitution.) The fact is that Democrats don’t perceive conservatives as legitimate players in the political process. That’s why they continually raise alarm about conservative Supreme Court nominees, even though in 40 years of a conservative majority on the court, not a single major liberal precedent has been overturned.
The Democrats didn’t block Bork for writing an article.
Democratic “threats” made in 2019, post-Merrick Garland, have zero bearing on their hypothetical behavior in 2016, pre-Merrick Garland and the shattering of norms that his (non)hearings represented.
I’m not a Democrat, but, from the outside looking in, it doesn’t seem like they have a real problem with right-leaning politicians or judges. I can understand why they might not view those who seem to be pursuing a return to the pre-Civil Rights era as wholly legitimate, but they’ve adopted plenty of relatively conservative positions over the years (just look at the record of their current presidential candidate!). The American Left has only recently begun to show its face again, for example, after decades of absence, and the Democratic Party has long seemed to harbor more resentment toward that group than moderate conservatives.
I’m also not a demographer, but I don’t think many would consider a potential 6-3 conservative majority on the SC to be at all representative of the US population. To me, that seems like the real legitimacy crisis here, not whether Democrats think of conservatives as legitimate political actors (spoiler alert: I think it’s safe to say they view conservatives about as favorably as conservatives view them).
You’re mixing up legal versus political conservatism, which are two very different things. I agree Biden is very moderate politically. But no Democratic Justice is meaningfully conservative legally (though Kagan displays a streak of it). In close decisions, the conservative justices routinely break ranks. (Roberts in the ACA case, Kennedy in Obergefell, Gorsuch in Bostock, Scalia in many 4th amendment cases, and in the video game first amendment case.) The Democratic appointees always vote as a block.
You’re wrong to say that Republicans hate democrats as much as democrats hate republicans. There is pretty much no liberal opinion you could say that would get you personally attacked at a federalist society meeting. There are a wide range of mainstream conservative views you’d best not say in a similar context among liberals.
> The Democratic appointees always vote as a block
I think this behavior could very possibly be caused by there being more conservative justices. If there were 6 liberal justices and 3 conservative ones you'd probably see the 3 vote as a block and the 6 break rank.
The supreme court is going to mostly issue opinions that are close to it's median member. And the more liberal or conservative justices on the supreme court the more liberal or conservative that viewpoint will be. And thus the more likely the more moderate members will be to break rank.
Constrain the operational gamut of law enforcement (aka “defund the police”).
Abortion is a medical health issue and a woman’s right to choose.
I dunno, there’s plenty that will get be undue attention at a Federalist meeting, and some things I could say that would put my life on the line (remembering home invasions, fire bombings and an assassination of a surgeon involved in abortions).
I've only voted straight democratic ticket for my entire life. And I feel more comfortable sharing my views with trump supporters than my liberal friends.
Just last night I had to walk away from a conversation because the other party got so heated just because I suggested it's very likely the new supreme court won't overturn roe v wade.
The GOP have been trying to overturn Roe vs Wade since at least the Reagan era, if not from the day the decision was made.
What was your reasoning for your side of the argument? Were you arguing based on the GOP history of not successfully overturning RvW, or were you challenging the other side's assumptions about GOP wanting to overturn RvW? Were you playing the ball or the player?
Which is basically two fold. Roe vs wade is very popular. Last pre research poll I found said even among Republicans less people wanted to overturn it than not overturn it. 49 to 48.
If the Republican justices fall along these same lines it won't get overturned.
Which brings us to our next argument Which is basically the supreme court is very reluctant to overturn major constitutional court cases that have stood for almost half a century.
So will the supreme court throw out 50 years of precedence to overturn an issue that 70-80% of the population and 50% of Republicans disagree with overturning?
I’d say any of those things at CPAC much less Fed Soc. Last Fed Soc meeting I was at before COVID, we had a vigorous debate over Bostock. The room was split 50/50. Likewise, there are enough libertarians to get a good amount of support for constraining the operational gamut of police or eliminating qualified immunity. More than a third of Republicans support making abortions always or mostly legal, and among Fed Soc, which leans a tidge libertarian, it’s probably half. Meanwhile, I wouldn’t address any of the nuances of those issues at an ABA meeting, much less in a partisan liberal organization.
Sure, that’s right wing radio. I’m talking about fairly ordinary people at ordinary people. You see this even within the Democratic Party itself, which has come to demand strict ideological purity. Everyone just pretends that 50% of Black people don’t oppose same-sex marriage, and that the 30% of the party that’s pro-life doesn’t exist.
You must have some very interesting "ordinary" friends. You're also trying to compare the federalist society, a high-brow legal organization composed of highly educated lawyers, with ordinary, likely much less educated people. Try going to a Trump rally and holding up a black lives matter sign. I'm sure you'll have plenty of intellectually stimulating conversation.
That's called compromise, and it is how a government should function, but Republicans have lost all ability to do that and so we have stalemate after stalemate, no covid stimulus, no attempt to compromise on anything. Democrats are fine with compromise, to a point, but the republicans have to meet in the middle, not take their ball and go home like they always fucking do.
Impeaching the president for an alleged offense committed while in office is not "trying to delegitimize the election," unless you're prepared to say Republicans were "trying to delegitimize the election" of Bill Clinton. Conversely, it is absolutely without question that there are Republican officials, like the president himself, trying very, very hard to delegitimize the 2020 election before it happens. And I would dearly like to see more Republicans, who used to be so damn concerned about preserving the rule of law, upset about that.
You are right, and shouldn’t be downvoted for pointing out a simple truth.
People are upset because the media played it up as such a miscarriage of justice, but the truth is the senate wouldn’t have confirmed him and so they didn’t vote for a hearing.
The Democrats of course can and obviously will do the same the next time they have opposition in the senate - and would have done the same, I’d bet, if the situation was flipped then.
I actually think many don’t understand this as it was really propagandized on Twitter, etc as some massive deal, but having the hearing wouldn’t have changed anything.
> but the truth is the senate wouldn’t have confirmed him and so they didn’t vote for a hearing.
This is not necessarily true. McConnell does this to protect his fellow senators from having to decide between party and state, potentially hurting their re-election chances if they side with the party. Majority leaders regularly stop things going to vote not because they wouldn't pass, but rather because it can create strife and bad feelings within the party.
I'm not sure this is really as relevant a question as whether an opposition senate has ever blocked a Supreme Court nominee in an election year. I don't have the answer to that, but it appears the last time a Democratic president made a Supreme Court appointment while Republicans held the Senate was in 1895, whereas the last time the reverse happened was 1987. So while we may not be able to say "the Democrats clearly wouldn't have done the same thing McConnell did" with surety, I don't think we can say that they clearly would have, either.
Yes, i know. Neither was 1895. That was kind of my point. Let me try to frame this a hopefully better way.
People keep trying to argue that McConnell isn't being a hypocrite, he's just following precedent. But for that to be true, we need to (a) find a time before 2016 when the Senate prevented a Supreme Court nominee from even getting a vote on the Senate floor in an election year, and (b) the Senate needs to specifically cite the upcoming election as a reason. So far, no one seems to be able to point to that supposedly precedent-setting case. And that's before we throw in McConnell's new claim as of yesterday that such a precedent only applies when the Senate majority and the President are from two different parties, a condition which, it's worth noting, was never mentioned by him or any of his supporters in 2016.
In strictly legal terms, McConnell gets to do what he wants. But the claim that he was following some previously established norm by denying Garland a vote in 2016 but not denying a new nominee a vote in 2020 is simply a lie.
It absolutely was mentioned by many people in 2016 (including McConnell himself, if you read his statements and realize he wasn’t spelling it out word for word because the majority aspect was blindingly obvious, and if I recall he may have even clarified that part too).
I read about it extensively at the time from many on the right, and the left - that was the entire grounds for it happening. That McConnel himself may not have explicitly called out the Senate majority in his prominent press interviews was because it was totally obvious to anyone even remotely familiar with politics why, and therefore why beyond saying “it’s an electron year” would he need to keep clarifying? He just wasn’t assuming the insane amount of bad faith everyone would give him, incl. people like yourself.
So no, you don’t have some subtle understanding that no one else besides you and “your side” is getting at all.
Again, let me reiterate, because it seems you’re really trying to find something here: it was discussed on the right extensively, explicitly mentioning the Senate majority factor at the time, in 2016, and was generally well understood on the right. In fact the rights news writers were sort of flabbergasted and writing about how it’s being propagandized to look super bad when in fact it was not. I can’t even believe you’re trying to argue that wasn’t the case - talk about a straw-man.
Avoiding the vote altogether as opposed to having it and rejecting it was indeed unique, but not hypocritical. Simply put, he had the power to do that as the majority in the Senate. You can be upset about it, but I suspect you’re really just upset because your side lost or you have some gut revulsion towards McConnel, not because it was some grand betrayal - because it didn’t change a single thing in terms of outcomes, not even in terms of slippery slopes. The Democrats are totally free to do the same the next time this situation comes up, and they will and are expected to, and that too wouldn’t change a thing, and I’m sure some idiot Republicans will whine about it as well...that’s politics.
Not really, just an inference from there being some 150 years of election.
If there was an instance where the other party did this the GOP would be slapping them around the ears with it. So since they’re not doing that, I assume there’s no instance they can use.
I'm curious: does anybody seriously think that if the positions were reversed that the Democrats would honor this?
Let's say that Biden wins, then Trump runs against him again in 2024. Somebody dies or retires right before the election, do you think the democrats would seriously wait and risk allowing the nomination to be done by Trump?
None of these people are in any way signaling their actual virtues. It's all just slogans. Also: the Democrats didn't grant this to the Republicans over Scalia. The Republicans were in power in the Senate at the time and used this power to their advantage.
Yeah, this is all terrible: this is the world you get when our politics seem to be regulated by twitter. If you want this to change, get rid of cable news talk shows, and get rid of twitter. Until then, this is what you're going to have.
The reason why this is not transferable to the Democrats, is because they haven't previously refused to hold confirmation hearings for an appointee solely on the basis that there'd be an election later that year.
If you're asking whether Democrats would have placed themselves in a similar position in 2016 if the roles were reversed, then the answer is no. I'd expect them to consider the nominee, and quite likely vote against - but they wouldn't stonewall until election.
But Democrats did try to nominate Garland in 2016, so now can they protest if Republicans put up a nominee now? Republican position may be inconsistent between 2020 and 2016, but if Reps now take position taken by Dems in 2016, how can Dems be critical if it?.
Has any elected democrat threatened to pack the supreme court, except as a response to McConnell reversing his position now that his party is in control?
You can't compare the senate majority leader with a random anonymous twitter account.
"We are on the verge of a crisis of confidence in the Supreme Court, We have to take this challenge head on, and everything is on the table to do that." is...not.
Even still, your argument doesn't follow. Reacting to someone doing a thing you disapprove of isn't the same as instigating the thing. Your argument is that since Democrats disapprove of what Republicans did, and are considering taking action to undo and action they disapprove of, that they would have also done the act. That is very strange reasoning.
Nobody should be talking about court packing. Sitting on nominations to gain tactical advantage might be a sneaky. But it’s something that’s been done forever. Expanding the Supreme Court for political purposes would be unprecedented and breaking a huge taboo. It is not at all a proportional response.
Refusing to vote on a nominee is also unprecedented. You've yet to acknowledge that in every other case the Senate voted. This time they refused to even put it to a vote. (And some senators considered continuing it through the entire clinton presidency, were she elected, I might add)
That's also a huge taboo, and for good reason. It prevents voters from making politically informed decisions because their representatives don't have actions on which to judge.
Indeed, but to find one in an election year you have to jump back to 1881, where Hayes proposed a Justice after the election had already happened. The confirmation lapsed. President Grant proposed the same justice and he was confirmed. Worth noting, Hayes also had a justice confirmed as a lame duck (William Burnham Woods).
[Edit: I missed lame-duck Millard Filmore in 1852 the first time around also]
Prior to that you had John Tyler in 1844, who had two vacancies in the court open up in his election year. He made 9 proposals of 5 different people, one (John C. Spencer) was rejected and then later re-proposed and withdrawn, one (Reuben Walworth) was proposed 3 times, withdrawn once and postponed or lapsed twice. One was confirmed. Another was proposed twice. So this whole thing was a complete circus, but even still congress did their duty and confirmed one of Tyler's picks.
Prior to that there was John Quincey Adams who, also as a lame-duck, proposed a nominee who was tabled. In 1828.
So the precedent, insofar as there is one, is that when an election has already happened, the other party can table it. Except that more often than not, that doesn't happen. In fact, it's really only happened twice, in 1828, and 1852, and then not in 1880 despite similar circumstances. And then 2016.
And again those cases were different: Adams had already lost the election, when he made the nomination. Fillmore is maybe the closest, even though it happened later in the year the election hadn't happened yet, but Fillmore also failed to be re-nominated, so in a sense he'd lost the election in the primary.
[To be extra clear, in most of the cases where a nomination expired, the same president had a nominee confirmed later (Eisenhower, Harding, Cleveland), so it wasn't a flat out refusal to entertain candidates.
If your claim is supported by that article you linked down below, it seems like a big stretch to refer to Democrats as a unified whole ("believe Democrats ... after they") when you're referring to three people, two of whom were engaged in ultimately failed campaigns for the presidency.
It might be more constructive to speak with precision about a claim of such import.
And here's the example comment that highlights the varying moral compass that seems to exist in defining what one perceives as "thrown under the bus" vs "holding accountable". What are your political leanings, if you don't mind me asking?
My leanings are complicated. I’d boil it down to a mix of pragmatism and pro-rights. I’m pro choice, pro 2nd amendment, pro gay marriage, mostly for a small government, etc. I usually lean republican nowdays due to the democratic side of the aisle being more likely to actually take rights away.
I don’t think what we know he did deserved the punishment, especially the picture where he was pretend groping. Nobody would have batted an eye at it at the time.
Absolutely not. Why would Trump eliminate one of the biggest draws to electing him? If he pushes someone through before November, he absolutely loses the senate (assuming you believe the polls). No way those purple states with senators up for election are going to carry Republicans who went from "we don't vote for the USSC during final term years" to "RUSH THROUGH THE FEDERALIST SOCIETY NOMINEE!" in 4 years.
The move is to have everything set and ready to go during the lame duck and push hard then if you lose or wait until Jan if you win. Removes the election math from the process.
This is probably the most toxicity I've ever seen in an HN story's comments. Thanks for everything you do... I imagine you've got your work cut out for you tonight.
TIL. I use underscores for italics (as my normal applications work that way), and have just been accepting that my emphasis looks like _emphasis_, instead of emphasis. Thank you.
Also, if it isn't consistent, that's because we only see a portion of what gets posted here, often rather randomly. If you see a post that ought to have been moderated but hasn't been, the likeliest explanation is that we didn't see it. You can help by flagging it or emailing us at hn@ycombinator.com.
With Supreme Court supremacy Republicans don’t have to get re-elected by voters anymore, they just have to dispute the results, lose, and appeal up to the nearest friendly court.
You can have your cake and eat it too by waiting, though.
The looming court seat was a very effective driver of votes for Trump in the previous election, at least that's the conventional wisdom. So have a go at seeing if that will work again. You can also spin it as being respectful, serious, and considered by waiting.
Even if you end up losing the Presidency, and even the Senate, you're still in power for enough time afterward to make an appointment.
The only things I could think of working against that would be: the idea that you just make the appointment immediately and tout it as another success to your base, or perhaps a fear that since it's Ginsburg's seat that's vacant, having it open is actually a more mobilizing force for Democrats. There's also, I suppose, the possibility that you make the move right away on the theory that this upcoming election is likely to be contested and could reach the Supreme Court.
OP is saying that there's no risk, because you can wait until after the election, but before the new term begins (i.e. before January, 3). Trump could still nominate then, and the current Senate could confirm.
But this is also exactly why this gambit doesn't really work - because the voters know that whatever happens at the polls, the end result is the same. They could hold voters hostage to the Supreme Court nomination back in 2016 because there was a split between the president and the Senate that blocked either side from getting what they really wanted until the next term.
Trump and the GOP plan to steal the electrion via the Supreme Court, just like GW Bush did in 2000, except this time they will need SCOTUS a lot more because it won't be as easy for them to justify nulling a landslide for Biden - but they will do it anyway because they have no shame, and if they have power, and they have SCOTUS to do their dirty work, then so be it.
I definitely would expect Trump to calculate whether it is more in his interests to do it before or after election day.
I don't think it's possible to remove the election math, though. Whatever he does, it could influence voter turnout for both sides.
There's also the possibility that something about the election will be disputed and go to the Supreme Court (as happened with vote counting with Bush v. Gore in 2000). So Trump might decide he wants his appointee to already be serving before election day if he thinks that would be more in his favor.
Yep. It's pretty much needed as if the election is contested and needs to be decided by the Supreme Court, not having a justice will be a disaster. Also presidency ends on January 20th - you can't go without a justice for 4 months.
Because this time, most likely there will be a contested election. And because this time it's different because both the WH and Senate are held by the same party unlike 2016. SC judge needs both Senate and WH and that was not the case in 2016.
Interesting point. Trump and McConnell's interests aren't actually aligned, here. McConnell is up for reelection, ahead in the polls, and wants an inoffsensive conservative justice. Trump's behind, is more interested in his reelection than in getting a conservative justice on the court. He can't drag his feet too long or it will look like he's stalling, and he'd have to nominate a judicial version of Judy Shelton so he's playing to his base, but it's someone the Senate wouldn't approve. Or if they have someone they already vetted with skeletons in the closet that just haven't come out yet.
This logic might apply during less polarized times.
American politics right now is full-on us-versus-them, and who has the biggest numbers. McConnell is in Kentucky and ahead in the polls, and he’s smart enough not to full-on troll the left with a flat-out fascist.
The left will respond as if he did anyway, but they’ll have a lot less success in convincing conservatives it’s a bad move if the judge is not beyond what most conservatives will support. That line has shifted far to the right (or, to the far right) over the past 30 years.
I guess I’m saying that opinions on an “inoffensive conservative justice” is a bimodal distribution, and McConnell’s right hump is higher.
Getting a conservative justice on the court is a massive draw for Trump's reelection. That's why he released a list of candidates before both elections.
He can still nominate after the election even if he loses it - his term doesn't end immediately. It's not really like the other two times - not like 2018 because there was no vacancy on the court then, and not like 2016 because the president and the Senate were deadlocked then.
I don't get this theory. There are a lot of people out there who want to see a conservative justice elected, but prefer Biden over Trump in the White House? Or a lot of conservative voters who are apathetic about the presidency and might not vote, but would be convinced to come to the polls if a Supreme Court spot was at stake?
I mean I can believe both of those sets of people exist, but hardly that they're numerous enough to dictate the election strategy.
It's not so much that they prefer Biden over Trump. But they dislike Trump. I know people who cannot stand his antics on Twitter or the way he disrespects women or his blatant infidelity to his wives. However they strongly believe in conservative and Christian values and will hold their nose while the vote for him to try to ensure the supreme court votes their way on issues such as abortion. Trump knows this and uses it as a carrot to encourage these people to vote for him.
Yes, there are lots of people who will tell you how much they dislike Trump, then vote for him. I'm saying that those people still exist even if the Supreme Court spot isn't at stake: a Republican White House still gives them a better chance of legislation upholding conservative values in the future.
Why? Trump is never going to appoint a justice who will legitimately advance any cause of liberty. He’s going to appoint someone who will protect his power and the power of the Republican Party. Trump making more appointments is exactly the same as him getting another 4 years, except it will last decades.
I'm not a right libertarian, so I can't really argue with you. But you have to understand that your perspective on Trump is not necessarily shared by them, regardless of how objective it may be.
Gorsuch is the most libertarian-leaning Justice we’ve had in decades. Others on the short list, such as Barrett or Kethledge, also have significant records of originalism with respect to the scope of the administrative state.
I don’t think libertarians realize where we are in 2020. Lots of culture war stuff from the last few decades where libertarians sided with liberals (abortion, contraception, same-sex marriage) has now flipped and then battleground is keeping the government from forcing people to participate in those things: Catholics being forced to perform elective abortions, nuns being forced to pay for contraception, people being forced to participate in same-sex weddings as bakers (and presumably caterers, etc.)
Nearly all EU countries recognize such conscience rights. Eliminating them would put the U.S. squarely outside the mainstream on this issue: https://en.wikipedia.org/wiki/Conscientious_objection_to_abo... ("Conscientious objection is granted in 22 member states of the European Union plus the United Kingdom, Norway and Switzerland.").
The context of this is laws that would require providers to provide certain services, under which such a contract would be deemed illegally opting out (as set forth in the court case linked above). That’s the whole point of this effort.
Is there a law in the US that forces a doctor to perform an abortion or a nurse to participate? Aside from one that says that your employer can ask you to fulfill the terms of your contract or lose your job? It seems that the vast majority of laws limiting physician freedom are being proposed or passed to prevent them from performing abortions, counseling patients about abortion, or discuss guns in the household.
Even in the absence of a specific law, medical providers can always be sued. Part of the push to redefine elective abortion from a right rooted in bodily autonomy to being “routine healthcare” is to open providers to lawsuits for refusing to provide them: https://thehill.com/opinion/healthcare/390968-abortion-refus...
Ah, now you’re reminding me of a case in Ireland where they let the Hindu, not Catholic, patient die because they did not believe in abortion. That is not a scenario I want in my life. Doctors choosing your morals for you and calling it their conscience?
I guess it’s the libertarian thing. Your right to swing your arm ends at my nose.
Except it’s not just about emergency care. (In that case I’d argue it’s a critical public safety issue.) Advocacy groups are targeting the practice generally, because providers opting out can mean that people have to travel further to get an elective abortion, sterilization, contraception, etc. You don’t have to be all that libertarian to believe that in non-emergency situations, doctors should be able to tell people to go somewhere else to get a procedure the doctor doesn’t wish to perform.
And, of course, since the doctor is also an active participant in killing the fetus, it’s not the “doctor imposing morals in the patient.”
There’s more to it. They often know at 8 weeks that an ectopic pregnancy is there. It won’t be for another 30 weeks that it becomes a problem. So, not really an emergency room situation but something where you might be in the room with your Ob/Gyn. If that person thinks abortion is murder they shouldn’t let you know that other doctors will happily murder your fetus to save you. If you die it’s god’s will. If the baby dies in 30 weeks, that’s also god’s will. You’re saying that the doctor should be held harmless withholding that information?
> If that person thinks abortion is murder they shouldn’t let you know that other doctors will happily murder your fetus to save you. If you die it’s god’s will. If the baby dies in 30 weeks, that’s also god’s will. You’re saying that the doctor should be held harmless withholding that information?
Obviously not. To begin, no religion I’m aware of would preclude informing the patient in that circumstance. And few libertarians believe that individual freedom requires allowing deception of others, as in your hypothetical.
Apart from that, weighing individual liberty interests is always context-dependent. E.g. consider the various wrinkles when it comes to self defense. For a libertarian, forcing doctors to perform a procedure that involves killing something (whatever you think that thing is) in non-emergency circumstances just because that might leave too few people in an area willing to do that probably falls too far on the side of ignoring individual liberty. It’s the basic libertarian position: you may have a right to something, but you don’t have a right to make someone else give you that thing.
> Catholics being forced to perform elective abortions, nuns being forced to pay for contraception, people being forced to participate in same-sex weddings as bakers
so the solution is to ban abortions, contraceptives, and same-sex marriage altogether?
In almost 50 years of a conservative Supreme Court majority, what major liberal precedent has been overturned? Basically none. Heck, Roe itself was a 7-2 decision with two Nixon appointees in the majority. Roberts won’t vote to overturn Roe, neither will Gorsuch, and probably neither will Kavanaugh. Kavanaugh, a Kennedy disciple, won’t undo Obergefell, probably neither will Gorsuch. History shows that conservative justice at best hold the line on social issues, or continue to move forward.
Look at the political debates likely to come up over the next 10 years and tell me where libertarians are aligned with liberals. Apart from the things I mentioned above, cases that will come up may include the constitutionality of a wealth tax, changes to equal protection to allow discrimination in favor of particular groups, firearms confiscation, etc. (I’m not saying all of these will happen, I’m pointing out what the next legal battlegrounds will be.)
> conservative justice at best hold the line on social issues, or continue to move forward.
The difference is that—unlike racial justice, women's rights, and gay rights—in this case abortion was a mistake and so the step forward would be to reverse it. If you go back far enough, society has successfully reversed actions that were at the time considered forward progress.
Dude you are really going to town on this posting. Kudos for fighting the good fight, I'm trying to balance out the downvotes but I'm clearly outnumbered lol. I always feel dirty AF after these flamewars so I don't know how you can do it.
Also, I think most of the "right libertarians" are already Trump votes out of sheer disgust and exasperation. Libertarians (of any stripe) are probably the least likely to get hot and bothered by Trump's antics.
There are a lot of evangelical Christians who reluctantly voted for Trump because he'd pack the court (and they like Pence). With one more conservative justice, they might decide the court is adequately packed.
Trump wants to skate from state (NY) let alone federal charges after the election if he loses. The Democrats should use this leverage for all it’s worth. If he’s going to act like a mob boss let’s turn him like one.
The irony of your scare-mongering is that Roe was a 7-2 case where two Nixon appointees voted in the majority. It was reaffirmed in Casey where another Republican voted in the majority. Obergefell was written by a Republican. So was Bostock.
I don't think there's irony there. The republican platform explicitly wants to overturn Roe. Russo was months ago. If the new justice is right of Roberts, it would get overturned.
The evangelicals are part of their coalition. They have to at least pretend to try to overturn it or the evangelicals won't show up.
Each party is a coalition of interests whether it's a particular minority, class, etc. They have to at least pander to every part of their coalition, otherwise they don't show up to vote. If nothing gets done, they can simply flail their arms, yell, scream and blame the other party. The important thing is making it look like they are trying.
Each party also has a coalition of large donors who expect a lot more for their money than mere pandering and aren't fooled by the tactics used for the previously mentioned coalitions. Parties without donors die, so this is a existential requirement.
This is essentially why voters never get what they want and donors always do.
A 5-4 conservative majority Supreme Court keeps striking down abortion restrictions, much less rolling anything back. A 6-3 wouldn’t flip it, though you might get some more enforcement of the viability limit. Only Alito and Thomas would actually vote to flip it if it came to that.
I'm not sure what your point is. One doesn't need to overturn Roe outright to overturn Roe in practice for many americans. If there are no abortion providers in your state, and your state bans telemedicine medication abortion, you can't get an abortion. That roe still protects Californians isn't relevant to you in mississippi or georgia or nebraska.
And that really, truly, only takes a 6-3 majority. If Barrett replaced Ginsburg in July, the ruling would have gone the other way. And consternation states well continue to violate the law in an effort to get it changed.
> I'm not sure what your point is. One doesn't need to overturn Roe outright to overturn Roe in practice for many americans. If there are no abortion providers in your state, and your state bans telemedicine medication abortion, you can't get an abortion. That roe still protects Californians isn't relevant to you in mississippi or georgia or nebraska.
Restrictions that eliminated every provider in a state likely would violate Roe itself, as would things like heartbeat laws. Yes, one imagines a 6-3 court would uphold more restrictions than today. But things like mandatory counseling, waiting periods, parental consent periods, 12 week limits, etc., exist in more conservative European countries like Germany, Italy, etc. Even insofar as Roe recognizes a right to bodily autonomy that precludes banning abortion entirely, why shouldn’t the most conservative states in the most religious developed country in the world be able to decide that they’re going to do the minimum required to protect that right, as opposed to something behind that one right.
Not that I want to get in the way of a reasonably articulated airing of the other side of this issue, which I appreciate you offering, but:
One reason is that the most conservative states in the country are still mostly polarized between rural and urban districts, with urban districts housing large majorities of people who want access to reproductive health services, but are denied that by a coalition of mostly rural conservatives to whom the welfare of urban denizens are an externality.
That is to say, the state legislatures aren't really speaking for Jackson or Birmingham or Little Rock (you can look up the demographics if you want). Even in Mississippi, the most conservative state in the county, the spread between Espy and Hyde-Smith in 2018 was just 7 points.
If (say) Kansas City could somehow secede from Kansas, leaving two states --- Rural and Urban Kansas --- I think the principled argument here would be stronger.
In addition to what tptacek says, I have a few other concerns about this line of reasoning. First, with regard to access, there are a number of states that have only a handful of abortion providers as is (the Dakotas collectively have 3 abortion providers). If you are forced to travel 3-4 hours (or more!) for a medical procedure once, sure perhaps that's unavoidable. But to have to do it two or perhaps 3 times makes the service de facto inaccessible to many.
If clinics were common and accessible, having counseling and waiting periods might be more palatable. The problems arise when that counseling is structure to guilt women into not having abortions, or when the waiting periods make it de facto impossible for people to access a medical procedure. I take a very pragmatic view of the law in this regard. That is, someone should not have to lose their job to get an abortion. I recognize that there are other medical procedures where the same thing could happen (and I argue that we should have stronger protections for those cases too!), but it's more egregious when the law is constructed to take advantage of our lack of social safety to make it more difficult to access rights. There's a strong parallel with voter ID laws here.
Also, I don't believe there are prohibitions on counseling, waiting periods, parental consent periods at the federal level in the US. Mississippi has laws requiring all of those, as well as ultrasound, and necessary requirements about the facility. So I don't see how that's relevant. States certainly can, and do, already put into practice those limitations. Russo went further.
Secondly, I personally take issue with religious justification for laws. Even indirectly, especially since we live in a country that claims to provide religious freedom I recognize that this isn't really legally tenable, but when there's a clear religious justification for a law, in my opinion, we should apply stricter scrutiny to that law.
Third, and this perhaps combines some elements of the first two, as well as tptacek's comments: there's a tyranny of the majority (or perhaps plurality) situation that arises. Restrictions on how someone can exercise a legally protected right are dangerous, and should only, be done with very compelling reasons. Most abortion restrictions aren't very compelling.
I also don't see that adding additional legal restrictions is "the minimum to protect that right". Meddling with a right to make it more difficult to exercise isn't doing the minimum, it's something else entirely. Instituting a new law cannot be the minimum. To give an example, the 15th amendment did the minimum in regards to giving black people the right to vote in the US. States that instituted poll taxes and literacy tests were not doing the minimum, they were abridging the right. At a state level, "the minimum" might have been to do nothing to prevent voter intimidation which also happened some. So to return to the modern example, "doing the minimum" might be, like, not instituting buffer zone laws.
You don't have to agree with it but his point was that the WH and Senate shouldn't contemplate a SCOTUS nominee in an election year if they are controlled by opposite parties. Not hypocritical as that's not the case this time.
Also what happens if the election is contested and needs to be decided by the Supreme Court? Can't have a Supreme Court without a justice till January 20th.
> Also what happens if the election is contested and needs to be decided by the Supreme Court? Can't have a Supreme Court without a justice till January 20th.
Strangely enough that same Supreme Court spent most of 2016 without a justice with no issue.
Also, in what world the Supreme Court deciding on the validity of an election with a deciding member having been appointed to it just before that same election by one of the participants does not consist of a massive conflict of interest?
> History supports Republicans filling the seat. Doing so would not be in any way inconsistent with Senate Republicans’ holding open the seat vacated by Justice Antonin Scalia in 2016. The reason is simple, and was explained by Mitch McConnell at the time. Historically, throughout American history, when their party controls the Senate, presidents get to fill Supreme Court vacancies at any time — even in a presidential election year, even in a lame-duck session after the election, even after defeat. Historically, when the opposite party controls the Senate, the Senate gets to block Supreme Court nominees sent up in a presidential election year, and hold the seat open for the winner. Both of those precedents are settled by experience as old as the republic.
The linked article actually goes on to describe every situation where there was an election year Supreme Court vacancy. Please read.
It's not "common" because election-year Supreme Court vacancies where different parties control the Senate and Presidency are "not common." Republicans filibustered the nominee when LBJ sought to appoint Warren's replacement, leading to Warren not retiring. Then before that, Eisenhower, a Republican, got an election year nomination through by nominating a Democrat.
Then you're back in the 1800s. But we routinely look back to the 1800s to establish what is accepted practice in our government.
> It's not "common" because election-year Supreme Court vacancies where different parties control the Senate and Presidency are "not common."
The number of qualifications needed in order to establish this "precedent" should tip you off that it's manufactured expressly to gain a political advantage.
The "qualifications" come from the appointment and confirmation process itself. The Constitution splits the job of filling Supreme Court vacancies between the two political branches of government. The fact that the process can become political where different parties control those two branches in an election year is utterly unsurprising.
> The fact that the process can become political where different parties control those two branches in an election year is utterly unsurprising.
Correct, no one is actually surprised that Mitch McConnell abandoned the flimsy justification for his power grab the instant it outlived its use to him.
How is doing something exactly as it’s spelled out in the Constitution a “power grab”?
Alternatively, McConnell could have called the vote and the Republican majority in the Senate could have just voted it down.
Pre-nuclear option (an actual example of a power grab) even a minority of Senators could stop a nominee from getting through. The Republicans had a majority.
> Alternatively, McConnell could have called the vote and the Republican majority in the Senate could have just voted it down.
It can't be assumed that there wouldn't be Republican defections on a Garland confirmation. This is exactly the reason the majority leader refused to allow a vote. Even now, a number of Republican Senators have already "defected" and declared they won't vote on a nominee before the 2021 inauguration.
Yes. In fact, the usual presumption is the opposite. The closer in time to the adoption of the constitution we can trace some pattern (or in the case of a law to enactment of the law) that is more persuasive. If the generation that wrote the constitution engaged in this political gamesmanship (and they did) that strongly suggests they understood such conduct was permissible within the framework they created.
> The closer in time to the adoption of the constitution we can trace some pattern (or in the case of a law to enactment of the law) that is more persuasive.
This sounds a lot like "originalism", which is controversial at best.
You, I and everyone else knows that this was a pretext, not a precedent. You can dress it up however you like, but the fact is that McConnell was going to do whatever he wanted no matter what.
The "conservative" National Review went back to every Supreme Court appointment in history and made charts showing exactly what happened to answer your question. The New York Times, with its "moral clarity" performed no such analysis and presented no such charts.
Why put ‘conservative’ in quotes? If you Google the name of the magazine their own meta description says conservative as the second word, so they consider themselves a partisan source.
In English quotes can be ambiguous, in this case they mean it is a direct quote from the parent comment (for emphasis, basically), not that it's under suspicion.
It's amazing how if someone shared NYTimes, WaPo, VOX, VICE etc, then everyone's cool. But if someone shares a slightly right leaning source, people start asking for "non-conservative" source.
Honestly you won't get a clear picture from reading a single source, or even multiple sources that lean a particular way. You have to read multiple sources from both political leanings.
Think of it as a trial. Liberal leaning media is the prosecutor and conservative media is the defendant. Depending on the topic, these roles are reversed.
Justice Antonin Scalia died in February of 2016, a replacement was nominated in March of 2016, and because Scalia's seat had become vacant during an election year, the Senate would not even consider a nomination from the president [0].
[0] https://en.wikipedia.org/wiki/Merrick_Garland_Supreme_Court_...