May 4, 2016

Now that Trump is the GOP nominee, shouldn't Republicans want to see Merrick Garland confirmed?

I'm seeing a fair amount of discussion of a point I'd been making — if not on this blog, then in person on a couple panels I've done at the law school: The GOP should want to confirm Garland now.

Garland was a moderate choice for a Democratic President. After an election won by a Democrat — presumably Hillary — we'll almost surely see a more strongly liberal nominee. Conservatives shouldn't hang onto much hope that Donald Trump — if he's elected — would nominate someone who'll turn out to be a solid conservative. So it's a good time to take the known person, Merrick Garland.

Aside from the effect on the Supreme Court, the theater of confirmation could — at this point — do the Republicans in the Senate some political good. The congressional elections are important, not everything should be about Donald Trump, and the Senate Judiciary Committee is a place where the party can display itself as dedicated and principled. I'm sure Ted Cruz — a member of the committee — can help with the show.

91 comments:

mccullough said...

Best to wait until Trump loses and then confirm him the next day. You never know what will happen.

Ann Althouse said...

"Best to wait until Trump loses and then confirm him the next day. You never know what will happen."

The President can withdraw a nomination.

mccullough said...

Obama's not withdrawing Garland, especially for Hillary. Garland seems like a sharp guy. He must have garnered a promise from Obama that he would not withdraw his nomination and take his chances that he would be approved by a lame duck senate.

If not, then he doesn't belong on the Supreme Court.

rhhardin said...

We want a nominee who's hostile to political correctness. Trump is the guy to appoint one.

DanTheMan said...

That's playing defense. Trump is playing to win. Win or lose, he's not hedging his bets.

And, this year, all bets are off. There's just too many variables to make a November prediction yet.

Henry said...

We want a nominee who's hostile to political correctness. Trump is the guy to appoint one.

Trump might appoint Bill Clinton for all you know. And fulfill your condition at the same time.

traditionalguy said...

Assuming that Hillary is a sure winner over Trump, and if she is nominated and if she is not under indictment and if she figures out how to attract voters by November, then that is a good idea.

Nonapod said...

Probably the best thing to do. Otherwise Hillary will nominate some ultra liberal nut

mccullough said...

How would holding a vote for Garland help the more than 20 GOP senators up for re-election?

Nonapod said...

How would holding a vote for Garland help the more than 20 GOP senators up for re-election?

It won't. But it's either the Senate or the Supreme Court.

Gusty Winds said...

Mitch McConnell drew a line in the sand on confirming any Obama Supreme Court Nominee.

Unless that's an Obama style "Syrian line in the sand", the GOP Senate is not going to reverse course. If they do, they will have done exactly what forced millions of GOP voters to support Trump.

Trump has won a shitload of States and Congressional Districts. Right now he has more GOP Primary votes than Romney received and we still have primaries to go.

It's amazing to see people pretend that Trump voters don't actually exist.

Virgil Hilts said...

Check out #dropouthillary exploding on Twitter (from the left not the right). The hate against Hillary is very strong in this one -- almost makes you believe she's not inevitable.

Tommy Duncan said...

"Best to wait until Trump loses and then confirm him the next day. You never know what will happen."

The President can withdraw a nomination.


The Democrats have made claims the Republicans are playing partisan politics with this nomination. Withdrawal of the nomination would be the epitome of partisan politics.

Brando said...

I don't see them voting on anything until after the election. If Obama withdraws Garland and then Hillary appoints Chelsea, and Schumer suspends the filibuster and they put her on the Supreme Court, the GOP will have itself to thank for taking a bad hand (Scalia's death) and playing a bad gamble (assuming they'd be in a better position in 2017). So be it.

Darrell said...

But have we seen Garland's video rental list yet?

Birches said...

What about Garland are we supposed to like? Say goodbye to Heller.

Hagar said...

A line in the sand washes out with next high tide.

I think hold out for a Trump win with coattails, and put Cruz on the Supreme Court.
If Hillary! wins, we are in for another step on the road to a full imperial government anyway.

Michael K said...

"And, this year, all bets are off. There's just too many variables to make a November prediction yet."

This and...

"Trump has won a shitload of States and Congressional Districts. "

It's amusing to see the angry "Conservatives" threatening to stay home in spite.

They have no idea what voters are thinking. None.

madAsHell said...

I think it would be wonderful to hand an empty Supreme Court seat to the incoming President.

Michael K said...

"If Hillary! wins, we are in for another step on the road to a full imperial government anyway."

Hillary is bought and paid for. She will do what Obama has been doing. The gun seizure stuff is for left wing primary voters.

As LBJ once said. "In my area, when you buy a politician, he stays bought."

I still think there is a fair chance she is not the nominee. Biden and Warren to the rescue as Hillary is incapacitated.

Lautenberg all over again. The Democrats have a playbook for indictments.

Mary E. Glynn said...
This comment has been removed by a blog administrator.
Scott Rothfus said...

Brando has the right idea, but the wrong take; to wit;

1. Clinton wins the election.

2. Obama withdraws Garland.

3. Clinton nominates OBAMA.

4. (Fill in the rest.)

Bay Area Guy said...

It's not a bad suggestion. McConnell could simply hold a vote, if he were inclined.

The premise though -- that Hillary will win -- may be faulty.

As Michael K notes above, there are too many variables this election. Indeed, the RCP average has crept back towards Trump. Still losing to Hillary, but only by 6.5 points. If that gap closes, and I expect it will, you will have a close race.

Sebastian said...

"They have no idea what voters are thinking." Voters are "thinking," eh? If we just vote for Trump we'll get a wall and touchback amnesty: illegal immigration problem solved. That sort of thinking? Or: if we just vote for a guy who takes his "news" from National Enquirer, we'll make America great again. That sort of thinking? Or: if we just vote for Trump, we'll get good trade deals made by good people and get American jobs back. That sort of thinking? Or: if we just vote for Trump, who knows what kind of SCOTUS nominee we'll get, which will be fun. That sort of thinking?

MayBee said...

If McConnell starts to look like he'll hold a vote, Obama can still withdraw Garland's nomination. And then the Republicans don't have any excuse to not hold a vote for the next, more liberal nominee.

Dan Hossley said...

Because Trump wants to nominate Cruz to the Court in exchange for his support in the general election.

Left Bank of the Charles said...

What's the political logic of voting to confirm now given the corner Senate Republicans have painted themselves into? You can't really expect Cruz to go back to Washington to lead the fight for confirmation.

If Republicans retain the Senate but Trump loses and Garland is withdrawn, they could just leave the seat open indefinitely. If Democrats keep the Presidency and recapture the Senate, pulling the Garland nomination would just make it easier for Republicans to filibuster any replacement nominee.

buwaya said...

What difference does it make ?
Is there any question that the pattern of votes on any decisions will vary depending on the identity of a Democratic nominee?
At best you would get different language in some decisions. But the 5/4 will stay 5/4.

dreams said...

I think Trump will win.

Michael K said...

"That sort of thinking?"

No, you are thinking like an angry teenager who got turned down for a date with the homecoming princess.

Michael K said...

"Because Trump wants to nominate Cruz to the Court in exchange for his support in the general election."

That's a real possibility and the best place for Cruz, not the presidency.,

Big Mike said...

@Althouse, you're a single issue voter and so am I. Merrick Garland should not be confirmed.

R. Chatt said...

No, assumes facts not in evidence. #NeverTrumpers are having a hard time accepting that Trump can win. Ann appears to be in the "bargaining" stage of grief. Most others are in denial and anger. Did you see Mark Levin's tweet about feces? It's almost funny to see such a rational man go apoplectic.

Goldenpause said...

All the pundits who predict that Trump can't win the general election are almost all the same pundits who confidently predicted that he couldn't win the nomination. Making plans based on the 2016 predictions of pundits is not a wise decision. The pundits may be right about the general election, but if they are it will be a coincidence -- even a stopped clock is right twice a day.

dreams said...

I have more respect for this guy than a lot of the so called expert pundits.

http://video.cnbc.com/gallery/?video=3000515041

AlbertAnonymous said...

The whole narrative is garbage. The left is afraid Trump will win, so it is pushing for Garland to be confirmed. And the Media (i.e., the Left) pushes these stories to try and sway some GOP senators.

But the GOP has NOTHING to lose by waiting. Even if your supposition is correct that Hillary wins and nominates someone uber-left, so what?

If the GOP confirms Garland, we have (at best) a mildly left leaning majority court (with 5 anit-2nd amendment votes) and then Hillary will get at least one more appointment and swing the court uber-left (where we won't be able to recognize the constitution). Remember RBG is not long for this world and Kennedy is getting long in the tooth as well.

If the GOP waits, and as you suppose Hillary wins, so what? What's the difference? Yes, Hillary will name an uber-left nominee, and yes, he or she will be confirmed, and yes we'll have a wildly left majority court. Same result.

darrenoia said...

Faulty assumptions:

- That Obama would withdraw his own nominee in favor of one from Hillary. Obama doesn't like Hillary. He won't help her legacy at the expense of his own.
- That, as buwaya said, there would be any difference in voting from a Democrat-appointed nominee of any kind (Dem appointees vote in lockstep; how different the last 30 years might have been if "conservative" nominees did the same!)
- That a sure-fire liberal Obama/Hillary nominee is preferable to a "roll of the dice" nominee from Trump on issues that matter to conservatives (free speech/Citizens United, abortion, guns) — and I say this as someone who bows to no one in contempt for Trump and his supporters.
- That the Senate wouldn't confirm the hated Ted Cruz so that they could stop having to deal with him. They might not save him from being shot on the Senate floor, but they'd gladly usher him out.

eric said...

Faulty reasoning.

1) There is no such thing as a moderate Democrat on the Supreme Court. Hell, we have had "moderate" Republicans on the Supreme Court that were just as bad as what's there now.

2) If Hillary wins, whoever she picks, as radical as they may be, will vote exactly the same as garland will and the other four liberal block of justices.

3) If Trump wins, there is a 50/50 chance he will pick someone like Scalia.

4) As long as the Republicans have the majority they can Bork anyone they want, even if Hillary is president. So the person picked will always be called "moderate" no matter how radical.

eric said...

I agree. Cruz would be great on the court

Kevin said...

"The President can withdraw a nomination."

Obama wants to be seen as important - to nominate as many judges to the court as he can. He won't want to leave an opening, even if it's for Hillary.

He can withdraw Garland if Hillary wins, but it's a risky move and there won't be much time left. Garland is his pick.

eric said...

What are the cons?

1) It looks like the Republican party is conceding the election to Hillary by giving the perception they think she will win.

2) Surrender monkeys. The rise of Trump and Cruz can be easily explained by how cowardly our Republican politicians are. Add another surrender?

3) You make an enemy of the GOP nominee for President. He has already said delay. He is now the standard bearer. You want to undermine the GOP standard bearer already?

G-Man said...

Garland is as moderate as those moderate Arabs we keep hearing about but never avtually seeing. He'll go hard left if he gets confirmedc

Sebastian said...

"No, you are thinking like an angry teenager who got turned down for a date with the homecoming princess." Ah, more Trumpian "thinking." Further illustration, I take it, of what voters are "thinking." No need for anger: as an actual conservative, or what used to be conservative until the day before yesterday, I have no illusions, and it's gonna be a fun ride. If only because now we'll get to see the Donald take the fight to Hillary!. He does oppose her, doesn't he? I mean, apart from amnesty and entitlements and taxes on the rich and Planned Parenthood and TPP and such. That's what voters were "thinking," weren't they?

dreams said...

Garland is anti the Second Amendment.

eric said...

Sebastian, suppose Trump does give us Amnesty, and abortion, and gay marriage, and a bunch of other stuff.

But he also gives us another Scalia.

Is it better to vote for him then?

I assume you don't believe this. That Trump is most certainly Hitler and the devil incarnate and maybe even worse than Hillary.

Which is why I started by saying, suppose....

dreams said...

Also, the Republican party needs to stop preemptively surrendering.

DanTheMan said...

On the R side, voters are angry, and fed up. If you're looking for somebody to blow it up, Trump is the guy. The assumption here is that whatever comes next couldn't be much worse.

Maybe. Maybe not. The R's seem ready to take that chance.

#NeverHillary

hombre said...

"... the Senate Judiciary Committee is a place where the party can display itself as dedicated and principled ...."

If the Republicans want to lose the Senate, this would be a good move.

I wonder if Ryan pimping a Democrat spending bill helped Trump along.

Republicans always do well when they pimp for Democrats.

robother said...

I can't imagine a single action more calculated to ensure that the maximum number of Republican Senators go down to losses in the 2016 election. Even a Trump landslide wouldn't save the incumbents from the wrath of betrayed Republican voters.

But at least the new Democrat majority on SCOTUS (and maybe in the Senate!) would thwart any Trump attempts to enforce the borders or take any other executive actions (including repeal of Obama's executive actions) that he campaigned on.

So, yes, I can definitely see the GOPe embracing this plan.

grackle said...

Our hostess:

Conservatives shouldn't hang onto much hope that Donald Trump — if he's elected — would nominate someone who'll turn out to be a solid conservative.

From the comments:

… if we just vote for Trump, who knows what kind of SCOTUS nominee we'll get, which will be fun.

I’m sorry but I’m puzzled. So far Trump has mentioned 2 possibilities for his nominees: William “Bill” Pryor Jr. and Diane Sykes. Both are very qualified and way more conservative than Merrick Garland.

http://tinyurl.com/z8bzmog

I can understand why our hostess wants Garland appointed. She knows that Trump will probably be the POTUS and therefore that Garland is the most liberal justice she could hope for. One in hand is worth 2 in the bush. Right?

And Garland, with his softness on some issues, and with that lifetime appointment, could turn out to be very liberal – as have other “moderate conservatives” after being nominated by a Republican President. After all, Garland readily agreed to Obama’s little charade – THAT should tell us something about him. So the way a liberal academic would see the situation is that Obama has to get Garland in now before Trump takes office and nominates justices who are real conservatives.

As a Trump voter I’m going to be real pissed off if the GOP senate follows Althouse’s advice and takes away President Trump’s options. But I would not be surprised, considering the fecklessness and ineffectiveness of the GOP-controlled Congress up to now. McConnell continues to block the Garland nomination but he’s waffled before.

http://tinyurl.com/jj5op5s

n.n said...

Garland was a choice by the head, Obama, of the PC church. It's probably not a good idea to receive advice from him and his acolytes.

Todd Roberson said...

One thing you can all start doing is stop worrying so much about Hillary.

She can't even put away a 75-year old socialist non-entity who's never had a job or any accomplishments. There aren't any "super delegates" in the general election.

What'll happen when she comes up against Trump?

We all just better pray that Hillary is the democratic nominee ...

Molly said...

Trump's sister is a federal judge. I don't think he would nominate her, but I bet he would ask (and take very seriously) her opinion. I'm not sure what that would be, but there are people commenting here who are better informed on that than I am.

I don't think Hillary would nominate Bill (or Chelsea -- please!) but Cheryl Mills or Obama are believable.

hombre said...

Michael K: "No, you are thinking like an angry teenager who got turned down for a date with the homecoming princess."

Absolutely right!! Trump's warts and lies all disappeared when he became the last prospective nominee. We are all Democrats now, so character and integrity be damned. It's all about winning!

Time to kiss the toad!

Edmund said...

Best suggestions I've heard: do all the vetting of Garland and have the hearings. No vote. If Hillary wins, vote to confirm Garland after the election. If Trump wins, let the appointment be withdrawn by Trump and have him appoint someone.

Tank said...

No. If The V wins, we're done anyway.

Michael K said...

Ah, more Trumpian "thinking." Further illustration, I take it, of what voters are "thinking." No need for anger: as an actual conservative, or what used to be conservative until the day before yesterday,

You are confirming my description. Thank you.

"Trump's warts and lies all disappeared when he became the last prospective nominee"

More bluster. Most of Trump's "lies" are misquotes like those at HuffPo. Do you get your talking points there ?

Some of the lefties are worried and are explaining why.

Then, of course, we have the nuts.

Editor’s note: Donald Trump regularly incites political violence and is a serial liar, rampant xenophobe, racist, misogynist and birther who has repeatedly pledged to ban all Muslims — 1.6 billion members of an entire religion — from entering the U.S.

That's a HuffPo EDITOR ! I guess you agree with him.

Did you hear him pledge to ban 1.6 billion Muslims ?

BrianE said...

At this point, it makes no sense to confirm him. There is little upside and, as has been previously stated, conservatives, even those who despise Trump, would revolt.

I suppose there is a small chance that Garland is to Obama as Souter was to Bush. An infinitesimally small chance, approximately the same chance as winning the powerball lottery.

The future of the country, it seems, is tied to a real estate developer/former tv reality star espousing populist/nationalist slogans. As desperate as that sounds, it is still preferable to the crook Hillary Clinton.


hombre said...

Michael K: "More bluster. Most of Trump's "lies" are misquotes like those at HuffPo. Do you get your talking points there ?"

Here are a few lies. None from HuffPo as far as I know, since I don't read it.

Said Cruz's father was with Oswald before JFK assassination.

Said Colorado and Fla primaries were rigged against him.

Said ISIS is making millions selling Iraq oil.

Said 2016 Omnibus Spending Bill fund illegal immigration through Phoenix.

Said Wisconsin had a 20% unemployment rate.

Said Bush "lied" about WMD and later denied having said it.

Said "wives" of 9-11 hijackers fled the US before the act.

There are many others readily identifiable, but why would that interest you now that you are on The Donald's denial train?

Meeeea said...

@Scott Rothfus
"Brando has the right idea, but the wrong take; to wit;

1. Clinton wins the election.

2. Obama withdraws Garland.

3. Clinton nominates OBAMA.

4. (Fill in the rest.)"

No way would he want the job, (Mrs. O might) but Clinton would bow to someone he wants, say Holder or Lynch.

Regardless, as Tank says, "If the V wins, we're done anyway."

And Trump has given some thoughts on his nominee, one being Sykes, and she's great. I doubt he'd nominate Cruz over an as, or more qualified, conservative woman. And Sykes has brilliantly and faithfully put her time in on the COA. And hey, being a non-Ivy, she'd also bring that educational "diversity" the wise Latina was gabbing about.

Ann Althouse said...

@Althouse, you're a single issue voter and so am I. Merrick Garland should not be confirmed."

Can't imagine what issue you think that is. Surely, not the Supreme Court.

CWJ said...

Confirm Garland because otherwise that particular SS Titanic deck chair might possibly be placed a little further to the left.

Bushman of the Kohlrabi said...

Given her profession, I suppose Althouse has to take this stuff seriously, at least publicly. However, the rest of us plebes understand how the game is really played. Garland will side with the liberals on every important issue. Selecting him over Hillary's future choice is a distinction without a difference. We should take our chances on the next President. Things couldn't get worse. There is only upside potential.

machine said...

1. Clinton wins the election.

2. Obama withdraws Garland.

3. Clinton nominates OBAMA.

4. the sickest burn in history!


...better act fast.

rehajm said...

It's amazing to see people pretend that Trump voters don't actually exist.

Nobody goes there anymore. It's too crowded.

khesanh0802 said...

@ Bushman Exactly.

Drago said...

machine: "4. the sickest burn in history!"

Actually, 100 million dead at the hands of leftists in the 20th century should probably be considered a greater "burn".

Not that you would know anything about that.

BTW, with any kind of luck, we could create a leftist paradise here and go without food and water and power and hope as well!

I hear there has been a bit of a "run" on goats in Venezuela. Those counter-revolutionary goats had it coming!

Static Ping said...

If Garland was truly a moderate - say, someone like Kennedy whose vote is often in question - then confirming him now would be a reasonable hedge strategy to an unpredictable election. However, he's not a moderate by any definition recognizable to a Republican and someone would have to be a fool to think otherwise, so his only selling point is he's old and therefore will be replaced sooner rather than later. By that point it may be too late, either because the Constitution has effectively been repealed or the Supreme Court no longer exists. Nothing to gain.

Bruce Hayden said...

The thing to keep in mind here is that Garland is not a moderate. There are moderates appointed by Dem Presidents, but he is not one of them. And, he has come out on the anti-side in regards to the 2nd Amdt. on a couple of occasions, which means that voting to confirm him is certain death to the political careers of most Republican Senators. Hillary has made clear that neutering the 2nd Amdt. is a priority, and the last thing we need is another anti-2nd Amdt. Justice. The one thing though that he does have going in his favor is his age - he isn't likely to last very many decades on the high court.

The idea of appointing Obama to the Supreme Court is interesting. I suspect that we will be in a position shortly where there is some horse trading between Obama and the Clintons. Obama can give Hillary one of two things - either a pardon (for her and he minions), or keep his AG from indicting her. They could get him a bunch of lucrative speaking gigs, or get him appointed to somewhere he might want to be, such as maybe the Supreme Court. Or, maybe to run the World Bank. I suspect that this is one of the biggest things going for him, in regards to a post-Presidency vocation. She absolutely needs him on her side, but he probably doesn't need her nearly as much. We shall see. Maybe more interesting might be the appointment of Michelle Obama, which would let her husband do his thing, which is probably not be tied to the SCOTUS calendar, and let her make a difference, which she seems more interested in at this point than he does.

I still see the best thing to do with Garland is to sit on the nomination and do nothing until the election. No reason to have hearings, and I think that Harry Reid killed their chances of filibustering the nomination. Which means that the Republicans could probably vote to confirm him within days of the start of the lame duck session, if Hillary wins.

Frankly, I think that most of the pressure for confirming Garland is coming, ultimately, from the Democrats. Deep down, they know that they are probably stuck with a deeply flawed candidate, and Trump is the one who is most likely to take her out. She is a horrible candidate, cannot do retail politics very well, has extremely high negatives, and is the most corrupt major party candidate to get this far in probably a century, if not more. If she doesn't get a pardon, it is possible that she could be indicted for upwards of 2,000+ felonies, possibly setting a DoJ record, which means that she could potentially face prison for the next couple lifetimes, with a Republican President. (Of course, if she wins, nothing keeps her from pardoning herself and her closest minions, if Obama hasn't done so already). Without Garland, the Democrats are SOL if Trump wins. So, no surprise that they keep coming up with more and more varied excuses why the Republicans should shoot themselves in the foot and confirm him.

cubanbob said...

I would say at this point Hillary is just as likely to face a referral for indictment as to win the election. I fail to see any inevitability of Clinton winning or the Democrats regaining either house of Congress.

Trump has very high negatives and so does Clinton. Trump has very high number of people who state they would never vote for him but the same is true for Clinton. The difference between the two very few people are jazzed up vote for Clinton but a lot of people are to vote for Trump.

As for the Supreme Court nominee, as mentioned by others it really doesn't matter if this guy is confirmed now or another Democrat nominee is confirmed if Clinton is elected. No Democrat is going to nominate a judge that will be a surprise on a matter that has ideological or political bent.

Fabi said...

I think retaining the Senate is a toss-up regardless of the nominee, due to this election cycle having a larger number of Republicans defending seats. It may not be a problem if the general election turnout mimics the primaries, but I'm not willing to make that prediction.

Birkel said...

I state once again for the record:

Althouse must have a Leviathan State if she wishes her preferred political outcomes to win. She desires this outcome because she will get her preferred politics.

mtrobertslaw said...

"Garland is a moderate." How do we know that? The available evidence seems to indicate he believes in the "Evolving Constitution" theory of constitutional law.
And that theory is not moderate.

grackle said...

The one thing though that he does have going in his favor is his age - he isn't likely to last very many decades on the high court.

Kind of reassuring – until we realize that a Justice’s decisions can often affect society for many years after that Justice has died. We are living under decisions right now that were decided by Justices that are now long dead.

If she doesn't get a pardon, it is possible that she could be indicted for upwards of 2,000+ felonies, possibly setting a DoJ record, which means that she could potentially face prison for the next couple lifetimes, with a Republican President.

I do not believe Hillary will ever be indicted for anything. Furthermore, I believe it would be a political misstep for President Trump to indict her. It would too closely resemble a “show trial” of the type we saw in the USSR in the last century and it would set a politically seductive precedent for future administrations – in that future administrations could be tempted to use the judicial system and the Attorneys General for political revenge.

Jack Wayne said...

So much for "cruel neutrality". Amirite? I simply can't square the circle of Althouse having trouble understanding why we have Trump v Clinton and now suggesting that the best plan is to vote Garland in now rather than wait.

Brian McKim & Traci Skene said...

Does this posting qualify as "concern trolling?"

Bruce Hayden said...

I do not believe Hillary will ever be indicted for anything.

I actually agree there, but the question is how do we get there? And, why? Why would President Obama give her a free pass for having committed so many felonies, and, apparently, thanks to testimony by Guccifer, allowed her emails to be easily hacked? The mechanism, I suspect, will just be for the AG to just study the case, until Obama leaves office, or, at least not decide not to indict until after the election. If they just get a criminal referral, and then decide not to indict, the evidence will most likely be heavily leaked in retaliation from both the FBI and the intelligence community, who view this as far more serious than does the President (and, presumably, his pet AG). They are also, apparently, making noises about leaking the evidence if the decision is sat upon too long, but that is more problematic, which is why I think that is the way that they will go. Of course, the FBI may decide there wasn't a crime committed... but I don't think that is the case. We shall see.

cyrus83 said...

What exactly is the incentive for the Senate, or any politician for that matter, to act principled? The Republican primary voters overwhelmingly went with a man so unprincipled that even he wasn't sure on the trail what his principles ought to be from one day to the next at times. And on the Democratic side, although it's much closer, the nominee is likely to be someone who remains the subject of a criminal investigation, besides all the usual shady dealings that have followed her and her cronies since the 90s. The voters have spoken, and principled is not high on the priority list.

The Senate majority's choice will ultimately depend on how likely they think Trump is to win, how likely they are to retain their majority, how much worse they think a replacement candidate will be, and the odds that they will do better simply by doing nothing.

I don't have any idea about Trump's odds of winning - some sites I read seem to think this thing is Trump's to lose, others think Trump has about as much chance as a snowball in hell. Ditto the Senate - there's been so much focus on Trump that the Senate fight hasn't gotten much attention. I don't think any replacement will be significantly worse - "moderate" Democrats in power always seem to be a ruse that is dropped in the event a vote is needed. And ultimately, since 4-4 on balance comes out better than 4-5, unless the Senate sees that the voters intend to push them to the minority, they could in theory block a replacement for years. I don't think that's ideal, but the way politics has been going, that's likely where we are.

cubanbob said...

Bruce Hayden the problem with the referral is that the FBI probably has a runaway train. If everyone who received classified information from her private server not only received but replied and possibly forwarded or included people in the c.c in the reply then the number of potential defendants could easily be in the hundreds or more and not only at the State Department but throughout the various departments and agencies and the White House itself. All of them flowing through Hillary's private and unsecured server. Where does the FBI draw the line? Can it? It may well be the target list is so vast the FBI and the DoJ will be stunned into inaction. Hillary may well get a pardon but if she does, she won't be the only one.

grackle said...

Why would President Obama give her a free pass for having committed so many felonies, and, apparently, thanks to testimony by Guccifer, allowed her emails to be easily hacked?

Because Hillary knows too much about the innards of the Obama administration? Because she knows where the bodies are buried and the jewelry is hidden? Trust me, Obama does NOT want Hillary under oath in front of a judge and jury with a GOP prosecutor throwing questions at her.

Furthermore, I believe the FBI has options other than those discussed so far. One of the options might be to hand over the gathered evidence and testimony to the Attorney General WITHOUT a criminal referral, indeed, with no referral at all – just handing it over and telling the Justice Department, “Here’s the evidence, we give it to you, now YOU decide what to do.”

And in fairness to the FBI – I do not believe it should be the responsibility of the FBI in this particular case to make the political decision whether or not to prosecute. It should not be the role of the FBI to permit the Democrats to escape the consequences of this type of decision, to enable Obama to duck these issues while blaming the FBI for allowing Hillary avoid the law.

Guildofcannonballs said...

Poker. If you play safe you lose. It is not smart yet people fool themselves it is to explain to and comfort their ego when the almost-inevitable loss confirms they have luck other than good. It wasn't and isn't their fault, but fate. The fault is in the asteroids, and how can that damage an ego?

john marzan said...

but prof althouse, if the GOP did something suicidal as to confirm merrick garland, trump will definitely lose.

dont you want to see ted cruz replace scalia in the supreme court?

Rusty said...

I don't see how the one thing follows the other.
Why confirm him at all.
Wouldn't it be better if Trump named his own nominee?

Mick said...

Seriously "law prof"?

You believe that a Usurper should pick 3 SCOTUS judges? The first 2 are bull dyke ideologues that have already shown that they should not be on the court. Now you want the ANTI 2nd Amendment political hack there too? You are no "Conservative" and certainly no "Constitutionalist".

But then, you voted for the Usurper ...TWICE.

Nichevo said...
This comment has been removed by a blog administrator.
James Pawlak said...

At the least, he should have Judiciary Committee hearings---As based on the methods applied by Democrats for Judge Bork.

holdfast said...

That would too closely resemble a “show trial” of the type we saw in the USSR in the last century and it would set a politically seductive precedent for future administrations – in that future administrations could be tempted to use the judicial system and the Attorneys General for political revenge.

Senator Ted Stevens to the red courtesy phone please.

Senator Bob Menendez to the blue courtesy phone please.

Speaker Tom Delay to the white courtesy phone please.

tim maguire said...

Confirming Garland now would be disastrous for the Republicans. Apart from, as others have ably noted above, the appallingly defeatist signal this would send, it would be one last betrayal from Republicans towards their own voters on their way out the doors of power.

It would be a generation at least before they wield power again.

Big Mike said...

@Althouse, you don't understand the issue I feel so passionate about? Go here. You only have to read the headline.

@tim maguire, how exactly are the Republicans wielding power right now?

Bruce Hayden said...



Furthermore, I believe the FBI has options other than those discussed so far. One of the options might be to hand over the gathered evidence and testimony to the Attorney General WITHOUT a criminal referral, indeed, with no referral at all – just handing it over and telling the Justice Department, “Here’s the evidence, we give it to you, now YOU decide what to do.”

And in fairness to the FBI – I do not believe it should be the responsibility of the FBI in this particular case to make the political decision whether or not to prosecute. It should not be the role of the FBI to permit the Democrats to escape the consequences of this type of decision, to enable Obama to duck these issues while blaming the FBI for allowing Hillary avoid the law.


Answering the first point first, the problem there is that a lot of FBI agents, along with a lot of people in the intelligence community apparently feel very strongly about this, and if there isn't a criminal referral, there very likely will be leaks. A lot of leaks. And, maybe some high level resignations, starting potentially at the top of the FBI. We shall see. There appears to be a lot of dirt there, much of which was probably criminal (even if done for the reasons claimed - convenience is not a valid excuse here).

AS to the second point - yes, it is political, and that is why I don't see an indictment. As you said, she knows where the bodies are buried. That is the stick. The carrot is that the Clintons can make Obama rich, when he leaves office, or, if she is elected, get him whatever his dream job it. And, I suspect that she is holding out the AG job in her Administration to Lynch, who was first appointed US Atty for the SD NY by Bill Clinton (and then reappointed by Obama). Which is why I still think that the big question will be whether there is a criminal referral.

But, the point that everyone knew, or should have known, is a good one. People in Obama's inner circle received emails from Hillary (from her private server). Plus people high up all through the govt. The extent of the scandal may be one reason that we may not get a criminal referral until after the election, or during the next Administration (and if Hillary is elected, she can kill it the first day in office by pardoning everyone who sent or received email from her when she was Sec. of State).

Bruce Hayden said...

Here is an interesting comment I found just now about why the intelligence community is so upset about Hillary's emails:

You know a scandal is extreme when there are so many, horrific details that you start to forget some of them. For instance, recall that the Intel Community has been particularly outraged by Hillary's unsecured server because it forces all of the agencies to scrutinize every, single one of their secret ops to see how many (if not all) of them have been compromised. Hillary's server quite possibly could be responsible for outing countless secret ops and intel methods. The damage may be incalculable.