February 18, 2016

For Obama, "appointing Supreme Court Justices is a process of trying to lock outcomes in place, and we shouldn't believe [him] if in the future [he tries] to say otherwise."

A position I took on September 29, 2005.

My son John remembered that and wrote about it just now on Facebook:
I basically agreed with my mom, Ann Althouse, back when she wrote this (eerily prescient) blog post after Chief Justice Roberts was confirmed in 2005. And I still basically agree with it — which doesn't change my view that the president and the Senate should act promptly to replace Justice Scalia....

32 comments:

Bushman of the Kohlrabi said...

I hope no one on that list is running for President.

And yet you voted for him.

PB said...

Odd that the Constitution says nothing about time-requirements for the judicial nomination/advice/consent process. Also, since "advice" is feature so prominently here, why isn't the president required to take the Senate's advice?

BDNYC said...

So let me get this straight. Obama, Clinton, Biden and Kerry all voted against both Roberts and Alito, and all four attempted to filibuster the Alito nomination.

They have NOTHING to say about whatever the Republicans choose to do to Obama's pick.

CStanley said...

Not (honestly!) trying to do a gotcha here but I browsed that comment thread and saw:

Jack: Roberts is more than "qualified." He's stunningly, brilliantly qualified. You can't vote against what he is without permanently branding yourself an ideologue who does not respect judicial independence. I'm disgusted with all 22 of those characters. They have abused their constitutional power, and I won't forget it when they run for President.

I'd truly like to know, did you forget, or did you remember but weigh this less against other considerations when the time came?

Jake said...

"Bushman of the Kohlrabi said...
I hope no one on that list is running for President.

And yet you voted for him."

BURN!

MikeR said...

So is the claim that the Republicans in the Senate are off the hook now because the President has already revealed himself as an unreliable partisan judge appointer? If it is, I think that's sophistry.
Much as I'd like a conservative court, there's no denying that a lot of customary behavior that used to make our government kind of work have gone out the window in recent years. Republicans and Democrats just cannot work together any more, and unless something changes it's going to destroy our country. We didn't used to be like Serbs and Albanians locked up together in the same nation, but we're almost there.

Hammond X. Gritzkofe said...

Per the Constitution, Judicial appointments are "by and with the Advice and Consent of the Senate," Nothing in there about what standards the Senate should apply.

De facto, the standards are partisan. Deal with it.

Hammond X. Gritzkofe said...


J.A.C. said " — which doesn't change my view that the president and the Senate should act promptly to replace Justice Scalia...."

Would J.A.C. say the same if political parties were reversed? If not, it is a baldly partisan statement and well illustrates that the Senate is free to be partisan in granting Consent to appointments.

Reminds me of the phrase from a mock Employee Performance Report: "Sets low standards and fails to apply them uniformly."

grimson said...

But since Obama is trying to lock his outcomes in place, he is never going to nominate someone the Republicans will find acceptable (he already said in his press conference that he will not be nominating a moderate), so it will be impossible for "the president and the Senate should act promptly to replace Justice Scalia."

Why waste time pretending otherwise?

robother said...

Progressives are all Alinskyites now.

Although they personally view judging as a naked exercise in power unconstrained by legal/Constitutional text or precedent, they are always happy to demand that Conservatives live up to the literal language of the law or Constitution and traditions of comity and deference to Presidential selection.

buwaya puti said...

You ARE now Serbs and Albanians locked up in one country. There is no way to fix this outside of an existential crisis. Too many critical interests are in conflict. The Supreme court has been an extremely partisan institution since at least the 1970s. This is the inevitable result of so much being at stake.
The only way out is to reduce the stakes by reducing Federal power. This in itself is a partisan issue though, which makes it unresolvable unless the "right" wins overwhelming power - to reduce its own.
No, this will not end well.

Big Mike said...

I think McConnell overplayed his hand a bit when he seemed to rule out any consideration whatsoever of anyone nominated. He should go through the motions, but have the Republicans treat any nominee the way that Democrats treated Thomas and Alito. But I knew Obama would overplay his hand, and overplay it worse than McConnell, and it looks as though he will do just that. Barack Obama can't seem to wrap his mind around the notion that the United States of America isn't Cook County, Illinois, and that he isn't Richard J. Daley.

What I just wrote makes me think about this scene from "Quigley Down Under."

Douglas said...

Mike R - I think it would be just ducky to go back to the old days of the Senate more or less rubber stamping SCOTUS nominees, and to "reset" everyone's expectations about what should happen. First, however, the Democrats must fess up. Sen. Reid must go to the well of the Senate and apologize to the entire nation for what the Democrats did to Bork. Without repentance, there can be no forgiveness, and without forgiveness there can be no going back.

Hammond X. Gritzkofe said...

Buwaya Puti is exactly right.

buwaya puti said...

This assumption that things CAN go back to the way they were- it's unrealistic. The only possible fix is to go forward to the other side. The ancient institutions are unsuitable to modern conditions. The normal way these cases are resolved in history is through a crisis.

kjbe said...

Feingold's not on the list. As I recall, he said it wasn't up to him/the Senate to stand in the way of an appointment.

buwaya puti said...

See Megan McCardle today.
She doesn't go far enough re the causes, but its a start.

Unknown said...

This has got to leave a mark. Heh

"Ann Althouse said...
Jack: Roberts is more than "qualified." He's stunningly, brilliantly qualified. You can't vote against what he is without permanently branding yourself an ideologue who does not respect judicial independence. I'm disgusted with all 22 of those characters. They have abused their constitutional power, and I won't forget it when they run for President"

Sebastian said...

Well, Progs are always trying to "lock outcomes in place." And then move on to the next "outcomes."

As other commenters have noted, disgust with an ideologue who does not respect judicial independence did not prevent you from voting for that character. Because McCain "lost" you blah blah blah. OK, fine. But it goes to show that even moderate Progs don't give a damn about "judicial independence," prefer just getting the "outcomes" they prefer, and will support the pursuit of power by fellow Progs to destroy people and institutions that stand in the way. It is a sobering fact that has forced conservatives to fight. It is all the more distressing because the Scalia meta-principle was that courts should not have (esp. Prog) legislative power and become the objects of such fights.

David Begley said...

The Left achieves many policy goals through the courts because they can never get through the other two branches. That's why this seat is so important.

Terry said...

What time limit does the constitution set on the president nominating a justice?
What time limit does the constitution set on the senate's 'advise and consent' role in appointing a justice?

Big Mike said...

Since January 20, 2009, my view of Democrats has evolved.

1) Democrats will accomplish their goals legally, if possible, extra-legally if need be, and illegally if all else fails.

2) Their goals are orthogonal to the benefit of the general population of the United States. If you're not in the Democrat coalition (and these days even a number of unions aren't, most notably the UMW) then go pound sand. If you're in the Democrat coalition, then wait your turn while the ultra rich get their cut, part of which flows back to the Democrats as campaign contributions and very thinly-disguised bribes (e.g., 3 speeches at $225K per speech).

dbp said...

I think that McConnell ought somehow to telegraph that Obama's nominee will be voted on after, November 8th. If it is a moderate and Clinton or Bernie win, they will probably get voted in--at least by the Republicans. Moderate or leftist will be voted against if any Republican wins.

But

The Democrats are helped by a moderate pick. So if Obama wants a legacy, he needs to choose wisely.

Saint Croix said...

Good article here.

Back in the day, it was Republicans who had all the fun and games with "substantive" due process, and tried to impose their economic beliefs into the Constitution.

Today it's the Democrats who are the bad guys. If you dislike all this "unseemly" political wrangling over the Supreme Court nomination process, then the Supreme Court needs to look in a mirror. You brought this upon yourselves. And at least Republicans are nice when they try to keep more dictators off the Court. Look how vicious and mean the dictator party is when the Republicans nominate people who just want to follow the law!

From the borking of Bork to the high-tech lynching of Thomas, to today's sit down strike, all of this is due to one opinion, and we all know what that one opinion is. Law school professors, Supreme Court Justices, liberal journalists and all the rest of the "abortion rights forever!" brigade are acting like Kevin Bacon in the movie. The silly people who think Casey has settled the law need to stop sniffing glue and take a peek at the hundreds of thousands of protesters who show up every year at your doorstep.

You have one major political party, several world religions, and millions of people who are convinced you are killing some innocent people. Fix what you did wrong, or this situation will continue to escalate, as the abolitionist movement continued to escalate. Fix it, you Ivy League assholes!

CWJ said...

My ratchet metaphor naturally comes to mind, and yes buwaya puti has the right of it.

Power will continue to flow upward to the federal level, and in so doing become ever more concentrated. As it concentrates, it's exercise will become increasingly arbitrary and meddlesome. There is no realistic mechanism to reverse the process. So like the tiny ratchet inside an old fashion wrist watch, we'll keep winding the stem until the spring inside can't take any further strain and the watch breaks.

Birkel said...

Remember, kids, it was McCain who lost Althouse. Althouse was a victim of McCain's mishandling the financial crisis. She really would have liked to have avoided betraying her earlier comments, but that unstable McCain just wouldn't let her.

Poor dear.

hombre said...

McConnell could mitigate some of his past stupidiy by "advising" Obama that the Senate will consider the nomination Miguel Estrada, Janice Rogers Brown or Condi Rice.

You know, as in "advice and consent." Although that's pretty heady stuff for The Stupid Party, particularly McConnell.

Freeman Hunt said...

I expect all of them to act in their interests. I expect Obama to put up a nominee, and I expect Republicans to try to block that person.

John Althouse Cohen said...

And yet you voted for him.

Yeah, she may have held out HOPE for different candidates, but she couldn't CHANGE who the actual candidates were.

Birkel said...

It is sweet to see a child defend a parent for a bad decision. Touching, really.

Meanwhile, the world burns. Would you care to comment on the predicted results obtaining?

C Stanley said...

@JAC- if still shows an odd hierarchy of principles, to denounce this partisanship and disregard for separation of powers almost as though it was disqualifying, and later to ignore it.

mikee said...

I, for one, think nominating Hillary Clinton to the open seat on the Supreme Court would be both wonderful politics and, in the hearings, great television. Come on, it isn't like she actually has a chance in hell of becoming president, right? May as well let her also not have a chance in hell of being a Supreme Court justice, too.