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Congress can't meaningfully restrict its own actions by passing laws: any law passed can be repealed by a future Congress by the same procedure as long as there are majorities.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.
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.