April 13, 2017

Linda Greenhouse tells Republicans — about the Supreme Court — you broke it, you own it.

The title of the column is "The Broken Supreme Court."

It's the old "Pottery Barn rule" — associated with military strategy and Colin Powell. The rule is normally invoked before an action is taken, so it works to support an argument against taking action. If you pick up that ceramic plate in the store, you might break it, and the sign wants you to know/believe that you'll have to pay for it. Actually, I think the signs had the more humorous, alliterative wording: "You break it, you bought it."

The real meaning of those signs was: Don't break anything. Be careful. The signs don't create legal liability. It's not that — to use contract law — the sign is an offer and the breaking counts as acceptance. And stores normally eat the loss when a customer breaks something. But maybe the signs encourage people to be more careful handling the merchandise.

But Greenhouse is deploying the old saying after the thing she's deeming breakage has occurred. Too late now to be extra careful! But Republicans were warned in advance of their resistance to Obama's nominee (Merrick Garland) and their going-nuclear vote to confirm Neil Gorsuch. Greenhouse is writing now not to stop anything or to convince any Gorsuch supporters that Republicans have broken the Court. She's saying: We should hold Republicans responsible for what the Supreme Court has become. And, of course, she has the opinion that it's become something awful. And it can always, henceforth, be contrasted to The Court That Might Have Been — The Court That Should Have Been — the Court with a 5-person liberal majority with Merrick Garland in the seat formerly known as Scalia's.

Greenhouse writes:
Going forward, it will be next to impossible for people to look at decisions that may appear on the Republican Party’s agenda — on voting rights, as a prime example — without seeing the Supreme Court as a partisan tool....
That's true, if by "people," you mean the coastal elite of the United States and partisan Democrats in the Blue Islands of Flyover America.

But I think it's easily possible for many Americans to see the Supreme Court as a legitimate, independent branch — and not in spite of but because of the election. The death of Antonin Scalia, less than a year before the presidential election, made what we want from the Court a big issue in the campaign. Denying the outgoing President his choice gave Americans our choice. What sort of person belongs on the Court? Candidate Trump committed to a list of names, and Hillary Clinton had endless opportunities to criticize his choices and offer her own, and the people voted. It seems to have been the decisive issue for many of us. The kind of Justices Trump promised to nominate — and Gorsuch was known and named — are what Americans think belongs on the Court.

Greenhouse thinks — or purports to think — that the process was too political. But would she say the same thing if Hillary had won — with her stress on the abortion rights and gay rights issues — and seized the nomination? I imagine that Greenhouse would read the election as a resounding endorsement of the liberal approach to constitutional interpretation and would cheer it on. Let's have more of it.

And I would not have a problem with that. In fact, the process is political: The President has the power to nominate and the Senate must confirm. That much politics is in the Constitution.

But here's the tricky part. Once the nominee is confirmed and goes on the Court, he (or she) becomes independent. There's life tenure, and the Justice has sworn to follow the judicial method and to stick to deciding cases according to the law. It's not supposed to be political.

So the other way that it's possible for people not to see the Supreme Court as a partisan tool is if they believe what the nominees always say in the confirmation process: Partisanship and political preference have no place in the work of a judge. It's what Gorsuch assured us. It's what everyone else on the Court assured us. And it's what Merrick Garland would have assured us.

Now, it's probably not what Linda Greenhouse believes, nor is it what her compatriots in the coastal elite believe. And I can tell you it's not what is generally believed on the higher altitudes of the Blue Island where I live. But I at least understand how many of my fellow Americans can believe it.

And how can nominee after nominee sit before the Senate and swear they will do something if no one can possibly think that it's true? It's possible.

And that's why the Supreme Court isn't even broken, let alone the sole possession of the Republican Party.

97 comments:

Richard said...

Someone get Linda Greenhouse a safe space and a box of crayons.

Ignorance is Bliss said...

The kind of Justice Trump promised to nominate — and Gorsuch was known and named — are what Americans think belongs on the Court.

Since Clinton got more votes, I don't think you can use the election to say what Americans, in general, think belongs on the court.

You can fairly say that Americans are evenly divided, and that, based on the rules in place, Trump won the right to nominate whomever he wanted. You can also say that, since Obama needed the consent of the Senate, which he never got, then Obama was not deprived of a right to place someone on the court.

rehajm said...

We should hold Republicans responsible for what the Supreme Court has become.

This includes giving credit where credit is due.

rehajm said...

You can fairly say that Americans are evenly divided

You can say voters are evenly divided. Calling all of them Americans may not be fair.

Hagar said...

Eisenhower is reported to have said he could think of only two mistakes he had made; unfortunately both of them now sat on the Supreme Court.

Earnest Prole said...

It reads like another warning to John Roberts and other Republican appointees that their legacy will be in jeopardy unless they move left (and indeed many Republican appointees through the years have done so).

Ann Althouse said...

"Since Clinton got more votes, I don't think you can use the election to say what Americans, in general, think belongs on the court."

I thought about that as I wrote the post, but the same thing that must always be said in response to this argument works just as well here as it works everywhere else. The relevant process for selecting the President is the Electoral College, and the candidates were chosen and the arguments were made to Americans as we exists in the various states. I only regret that there isn't a word to replace "Americans" that would highlight our location in states -- United Statesians.

The popular vote is a weird statistic. It includes many people in California where many people may have chosen not to vote, because their preferred candidate had no chance and many people who voted for 3d party candidates because they knew they couldn't affect the outcome. And there are all the people who didn't vote in red states because they could see that Trump would win by so much they didn't need to get out.

It was a fight fought according to the rules and the losing side could be more respectful of the process.

tcrosse said...

Presumably the Court is broken because Trump usurped the Throne from its rightful heir.

Ann Althouse said...

"This includes giving credit where credit is due."

I agree that's a corollary to Greenhouse's argument.

tcrosse said...

I only regret that there isn't a word to replace "Americans" that would highlight our location in states -- United Statesians.

The Italians have a word : Statunitensi.

tim in vermont said...

They, and it is a hive-mind, they are doing battlespace prep in order to pack the Supreme Court.

Owen said...

The attitude and strategy behind Greenhouse's piece were clearly evident also in Jeffrey Toobin's interview yesterday on NPR. He has a big article at the New Yorker which apparently (I have not read it yet) profiles the sinister cabal of the Federalist Society and its arch-villain Leopoldo Leo (a name straight out of Marvel Comics!) which Toobin says has been working for many years to indoctrinate the judiciary with its right-wing views and infiltrate onto the bench creepy originalists like Neil Gorsuch.
Up to a point I get this attitude and strategy but I think they are going too far. It is going to poison the atmosphere and undermine the institutions. They really seem to have gotten lost in their tantrum.

Mike Sylwester said...

The judicial issue that Hillary Clinton emphasized publicly was that the Supreme Court should overturn Citizens United.

However, I think that the judicial issue most important to her privately was that the Supreme Court should allow Democrat lawyers to sue gun manufacturers after a gun was used to commit a crime.

Of course, she refrained from saying that publicly because she did not want ...

* to lose absolutely all the gun-right voters

* to reveal too blatantly that the Court's decisions should be based not on legal principles but rather on "empathy" for "victims".

tim in vermont said...

Meanwhile Trump is at 48% approval, despite the white-hot blast of propaganda from every source of blue elite opinion from the nightly news to comedy shows.

Owen said...

Apologies to all, especially to Mr Leo at the Federalist Society: I was wrong on his name. Leonard not "Leopold". After I read Toobin's piece I expect to have more to say.

Mike Sylwester said...

Ann at 7:40 A.M.

I only regret that there isn't a word to replace "Americans" that would highlight our location in states -- United Statesians.

Use the word electorate.

William said...

With respect to all here, didn't the SCOTUS start to become politicized under Woodrow Wilson? Doesn't this entire thing boil down to the question of an ACTIVIST court? An activist court is, by definition, more sensitive to the political issues of the day. The court has been getting more and more activist, expanding it's reach and departing greatly from originalism. If that's not political, tell me what is.

Left Bank of the Charles said...

Let's remember that the conservatives had to change the rules to get Gorsuch on the Court.

Laslo Spatula said...

Laying the marker to discredit future Supreme Court decisions.

A corollary to Apophasis, perhaps.

I am Laslo.

Roy Jacobsen said...

In the eyes of Greenhouse, nothing a conservative does, short of unconditional surrender, is acceptable.

tcrosse said...

Let's remember that the conservatives had to change the rules to get Gorsuch on the Court.

Because they had the votes to do so. Isn't that the toughest of shit ?

Roy Jacobsen said...

Let's likewise remember that the GOP just changed th rules back to what they had always been up until a decade or so ago.

William said...

Don't the courts decide any issues besides abortion and gay rights?..........Gorsuch certainly looks like a judge ought to look. The effort to depict him as outlandish and extreme is counterproductive. He is rubber, and they are glue.

Ignorance is Bliss said...

Left Bank of the Charles said...

Let's remember that the conservatives had to change the rules to get Gorsuch on the Court.

Yes, they did. And they used the existing rules to change the rules. All proper.

Are we supposed to be outraged that they changed the rules, in a manner similar to the way Democrats changed the rules for other nominees, and the way Democrat leadership stated they would change them for the Supreme Court, if they won the Presidency and controlled the Senate?

tim in vermont said...

If we are going to go all "who did it first" we know that Democrats under Reid first eviscerated the filibuster. Democrats shredded the rules to pass Obamacare.

Once the Democrats have packed the court, they will be able to find that the Electoral College violates "one man, one vote," which is what they all believe.

Mike said...

Greenhouse is the epitome of the DNC-Media complex, so full of herself, swelled with self-importance, suffused with her favorite scent: righteous indignation. She is blind to any democrat responsibility for the level of comity in the senate, and for all her thick-skulled analysis she still overlooks the very legitimate option of the senate to just do nothing in response to an executive nomination. Sure it's frustrating when YOU want them to act (as I did the many times Reid engineered a death-by-neglect for bills the house passed), but non-action is a legitimate response by this sober deliberative body.

Greenhouse embodies all that is wrong with "reporting" at the NYT and in these times in general.

Ignorance is Bliss said...

William said...

Gorsuch certainly looks like a judge ought to look.

Old white guy?

sparrow said...

We had judges make up completely extra-constitutional rationalizations for abortion, gay marriage and impose those by fiat, and somehow the Republicans broke it: get real. Rather this is just a brief pause in the steady erosion of the Constitution and our legal system in general. Seating Gorsuch simply slows down the pace of the long defeat.

MadisonMan said...

If Linda Greenhouse is unhappy then I'm more content with the fact of a Trump Presidency.

Darrell said...

Greenhouses work better with plants.

Mike Sylwester said...

Linda Greenhouse:

There’s a crucial difference. Justice Scalia reached the Supreme Court in 1986 by the normal route, events following one another in typical fashion. Chief Justice Warren E. Burger announced his retirement. President Ronald Reagan chose a sitting associate justice, William H. Rehnquist, to replace him, simultaneously naming then-Judge Scalia of the United States Court of Appeals for the District of Columbia Circuit to the Rehnquist seat. The Senate Judiciary Committee conducted a confirmation hearing, and the full Senate confirmed Justice Scalia unanimously to the seat he went on to occupy for nearly 30 years.

Burger announced his retirement in 1986, when he was 79 years old and had served on the Supreme Court for 16 years. Burger still was rather healthy and active, and he lived another eight years.

If Ruth Ginsburg had followed Burger's example, she would have retired about five years ago, just after Barack Obama had been re-elected to his second term. She would have granted some other, younger liberal judge the experience of serving on the Supreme Court. Because of her selfishness and stubbornness, however, she has created a precarious situation for her fellow liberals.

Now Ginsburg will refuse to retire as long as the President is a Republican. As she will become increasingly frail and demented, she will create a Supreme Court situation that will be ludicrous and disgraceful.

The Democrats will OWN that situation.

Darrell said...

Did Hillary really win?
Depends. . .

Mike Sylwester said...

Linda Greenhouse:

This week, a federal district judge in Texas issued a strong opinion reaffirming an earlier finding that the Texas Legislature deliberately discriminated against minority voters when it enacted the nation’s strictest set of voter ID requirements. The Trump administration had withdrawn the federal government’s support for the plaintiffs in that long-running case, a startling repudiation of the government’s historic protection of the right to vote. That case will soon be at the Supreme Court’s door.

Now that Neil Gorsuch is on the Supreme Court, we can look forward to the end of so-called "judges" ruling that voter ID requirements "deliberately discriminate against minority voters".

The Democrat Party is historically the party of fraudulent voting. The Democrats still want to be able to round up all the vagrants on Election Day, take them to voting place, and then give them a few bucks to buy a bottle of wine.

Most importantly, the Democrats now want all illegal aliens to be able to register to vote by merely obtaining a drivers license and then to be able to vote without inhibition.

joucas said...

@ Left Bank:

Let's also remember that the rules provide for changing the rules.

Unknown said...

Just another absolutely clueless democrat to be ignored. I'm getting real good at it.

West Texas Intermediate Crude said...

"Old white guy?" (Ignorance is Bliss @0806).

Yes, from the same group that freed the slaves, gave women the vote, made homosexual marriage legal, founded this nation. Discovered electricity, developed modern medicine, built this internet that allows you to spew your snark...

CWJ said...

Note to Greenhouse and Left bank,

The tactics used to forestall Garland and confirm Gorsuch were the Biden and Reid rules respectively. But yeah, Republicans!

Michelle Dulak Thomson said...

For me, the SCOTUS was the only reason for my vote. Though as I'm in Oregon, it made zero difference.

Rick said...

Greenhouse thinks — or purports to think — that the process was too political. But would she say the same thing if Hillary had won — with her stress on the abortion rights and gay rights issues — and seized the nomination?

Neither abortion nor gay activism was her stressed position. Her most important court criteria, repeated over and over again including promising a litmus test, was ensuring people could not pool their funds to make documentaries about left wing politicians.

David said...

Darrell said...
Did Hillary really win?
Depends. . .


A lifetime supply, i hear.

Ignorance is Bliss said...

West Texas Intermediate Crude said...

Discovered electricity, developed modern medicine, built this internet that allows you to spew your snark...

Us old white guys sure have done a lot. Although to be fair, the building of this internet has involved significant contributions from the not-so-old, and a fair number of Asians ( and I assume a smattering of others. ) Probably true also of the most modern of modern medicine.

My point was just that I don't determine if someone is likely to be a good judge based on the color of their shriveled external genitalia.

Fritz said...

tim in vermont said...
Meanwhile Trump is at 48% approval, despite the white-hot blast of propaganda from every source of blue elite opinion from the nightly news to comedy shows.


And perhaps because of.

Jupiter said...

"Going forward, it will be next to impossible for people to look at decisions that may appear on the Republican Party’s agenda — on voting rights, as a prime example — without seeing the Supreme Court as a partisan tool...."

Linda Greenhouse is hardly in a position to complain about partisan tools.

Sebastian said...

"And how can nominee after nominee sit before the Senate and swear they will do something if no one can possibly think that it's true? It's possible." Not "no one," but no one who knows anything. Anyway, for those of us who know a little bit about the legal systems of other countries, the fundamental dishonesty created by the US system and its egregious politicization is a strike against it.

"And that's why the Supreme Court isn't even broken, let alone the sole possession of the Republican Party." It is "broken," if the standard is the one applied in many civilized countries (not all), where courts have limited authority and discretion, and are in fact checked by the legislature and executive--where abortion rights and same-sex marriage are decided on through public deliberation, in a transparent democratic process. The fundamental dishonesty in the US legal system, where the likes of Blackmun and Kennedy simply fabricate legal precepts, with the active collusion of law professors, is a strike against it.

@Owen: "It is going to poison the atmosphere and undermine the institutions." This is the point. The prog culture war aims to "poison the atmosphere" and undermine all institutions, the easier to seize power and impose transvalued values. Progs have been quite successful. The Trump interregnum and current GOP majorities merely slow down the onslaught.

David said...

Now Ginsburg will refuse to retire as long as the President is a Republican. As she will become increasingly frail and demented, she will create a Supreme Court situation that will be ludicrous and disgraceful.

The Democrats will OWN that situation.


Of course, we have no idea whether she will become so "frail and demented" that she can not do the work of the Court. She's old, she's tiny and inevitably she tires easily. But we do not know her mental state. Under the Constitution (remember that part?) she has the right to serve as long as she wants. There is no removal process other than impeachment. So all the teeth gnashing insults we can muster will have no political effect, and she will ignore them if she ever hears them.

I don't agree with Ginsburg's approach to the Constitution, but it seems to me that conservative "respect for the Constitution" should include recognition of her constitutional right to remain, even if for political reasons.

Otto said...

Fake news. The horse has been out of the barn for a long time.Trouble is she is afraid some of the horses might be returning. First Protestants on SC scares the shit out of Greeenhouse.

Ignorance is Bliss said...

David said...

I don't agree with Ginsburg's approach to the Constitution, but it seems to me that conservative "respect for the Constitution" should include recognition of her constitutional right to remain, even if for political reasons.

I think conservatives agree with that. Personally I don't fear her declining into dementia. Worst case, she continues her current path of ignoring the Constitution and voting as a leftist. Best case, her vote becomes random, and she votes with the centrists like Justice Thomas half the time.

Static Ping said...

The Supreme Court's role is a bit vague in the Constitution. It is arguable it was broken from its outset. The politicizing brokenness goes back to at least Roe v. Wade, a pure fiat ruling that made every subsequent Supreme Court nominee vote a de facto vote on abortion, though you can go back and pinpoint other moments where things went wrong (FDR intimidating the court with the packing plan, "separate but equal," etc.) The nomination process went wrong with Bork and Ted Kennedy's grandstanding slander, again very much influenced by the court's prior sins. And then there is the phenomenon of members of Congress avoiding controversial votes in the hope that the Supreme Court will make the decision for them, which is deep corruption of both institutions. When that started I don't know. In any case, the Supreme Court was broken long before Gorsuch.

Do note that Greenhouse cannot resist taking a swipe at Clarence Thomas. Pathetic.

rcocean said...

I've seen this movie before. Lefitst like Greenhouse start sounding the alarm about "Right-wing Justice" and how the Republican court is going to do all these crazy Nazi things.

And they never do. They don't even roll back any of the outrageous left-wing crap the SCOTUS has done in the past.

It'll be the same this time. Why do you think Goresuch was such a beloved candidate of the Establishment? He'll be another Kennedy.

Status quo remains status quo.

Jack Wayne said...

I don't think that only Blie Elites view SCOTUS as completely politicized. Nearly everyone I talk to thinks that it is. Time to eliminate the middlemen and have direct elections for appellate and SCOTUS judges. And don't forget to put in an age limit of 80.

rcocean said...

The Left is smart, they see the SCOTUS for the poltical tool it is. A tool to get Liberal policies enacted by taking a judicial shortcut.

The only people who believe the SCOTUS are wise old grey beards, deciding issues objectively based on their reading of the Constitutional scrolls are idiot conservatives.

Static Ping said...

As to the analogy, it is awful. She says it like it is a bad thing. The Republicans would love to own the Supreme Court. Now we do, apparently! Let's drive a herd of bulls carrying chainsaws through the china shop, stat! LET'S OWN ALL THE THINGS!

Bob Boyd said...

Shorter Linda Greenhouse:

"I HATE YOU! I HATE YOU!" Smashes pots.

Bob Boyd said...

Bullshit in a china shop.

Bushman of the Kohlrabi said...

It's not supposed to be political

Althouse, thanks for the chuckle. When was the last time a liberal justice disappointed the leftist base on a major decision?

Mike said...

Good summary, Bob Boyd.

Bruce Hayden said...

Greenhouse is letting her TDS (Trump Derangement Syndrome) show. Maybe not obvious to her core audience, who mostly live in the same leftist bubble. But to most everyone else. Her job is to dispassionately analyze the Supreme Court for her readers. This is just one more reason that when we hear her talk on the Supreme Court, instead of thinking how wise she is, so many of us just assume that she is being a partisan hack, which is mostly what she seems to do with her SCOTUS reporting. Best thing that she could have done for her reputation was just bite her tongue. Sure, she is a left wing hack, but making it so obvious by opening her mouth here just reinforces our view of her hackiness. Which is why I was attributing her overreaction to TDS.

And, no, the Republicans aren't the ones who politized the Supreme Court. That has been, from the start, on the Democrats. This was only the first, or maybe second time that a Supreme Ct nominee had been filibustered. That was started by Dems in recent years, and is now off the table, as it should be. These were fake filibusters anyway. Used to be that you had to stay up all night talking to make it work by completely shutting down the operation of the Senate. Then, you just needed to be able to keep the other side from having 60 votes for cloture, and the Senate would just go on and do something else. What that meant was that dozens of nominees, plus a bunch of legislation, could all be undergoing being filibustered separately, at the same time. And that was on the Dems.

Bill Peschel said...

Nothing much to add, except I took a Con Law course back in college that made me read and dissect 57 cases from Marbury to Roe (I'm damn proud of my work in that, a rarity.)

Reading Roe was a revelation. Complete bullshit, and I understand the necessity sometimes for abortion, and worry every time lawmakers monkey with it in the legislature, but that's an argument for another time.

Linda Greenhouse is, in short, a well-paid Democratic party operative with a byline.

YoungHegelian said...

Buck it up, ladies & gentlemen! It could have been worse. Instead of Prof. Althouse fisking an article by Linda Greenhouse, she could have subjected us to an article by Dahlia Lithwick.

Gahrie said...

There's life tenure, and the Justice has sworn to follow the judicial method

THE judicial method? There are at least two of them, diametrically opposed.

The confusing thing to me is that you apparently support both of them...originalism for statutes and Posnerism for Constitutional Amendments.

The Cracker Emcee said...



"Since Clinton got more votes, I don't think you can use the election to say what Americans, in general, think belongs on the court.

You can fairly say that Americans are evenly divided..."

Not ideologically. Given that a very large chunk of the Democrat voters are motivated solely by the basest self-interest (i.e. Free Stuff) and wouldn't know the Supreme Court from Diana Ross, it's a safe bet that active ideological preference in this country is center-right.

Gahrie said...

Now, it's probably not what Linda Greenhouse believes, nor is it what her compatriots in the coastal elite believe. And I can tell you it's not what is generally believed on the higher altitudes of the Blue Island where I live. But I at least understand how many of my fellow Americans can believe it.

Professor heal thyself.

Sam L. said...

Forget it, Jake, it's Greenhousetown.

rcocean said...

"Her job is to dispassionately analyze the Supreme Court for her readers."

She never did that.

Her real job was to influence SCOTUS judges like Kennedy by giving him lollipops and Gold stars when he was a "reasonable conservative" and spankings when he voted with Scalia.

HoodlumDoodlum said...

Greenhouse: Going forward, it will be next to impossible for people to look at decisions that may appear on the Republican Party’s agenda — on voting rights, as a prime example — without seeing the Supreme Court as a partisan tool.

Ann Althouse said...Greenhouse thinks — or purports to think — that the process was too political. But would she say the same thing if Hillary had won — with her stress on the abortion rights and gay rights issues — and seized the nomination?

You left out a big one, ma'am: candidate Clinton explicitly stated a litmus test for her Supreme Court nominees--opposition to/a desire to overturn the Citizens United case. It irked me that few people made a big deal about that, since litmus tests of exactly that kind are supposed to be so horrible but no one much minded when the Hilldozer did it.
Anyway that goes to your point that the election can be seen as the American people deciding what kind of Justices they want nominated. Hillary and Greenhouse's preferred type lost.

William said...

While SCOTUS nominations have pretty much always been partisan to some extent, the Democrats racheted that up significantly when Robert Bork and then Clarence Thomas came along. And when Democrats broke the filibuster for other federal judges it was pretty much a given that at some point it would be eliminated for SCOTUS as well. Blaming all the partisanship on the Republicans is pretty disingenuous on Ms Greenhouse's part, but that is certainly no surprise.

HoodlumDoodlum said...

Not to be a jerk, but when's the last time Linda Greenhouse wrote or said anything that struck you as particularly interesting? I mean, I can't think of anything at all.
There are lots of Leftist writers that are wrong about almost everything but nonetheless manage to make an interesting argument now and then, or take an unusual angle on a topic, etc. Chait, Saletan, Weisberg, Weigel, Friedersdorf...hell, even Greenwald and Vanden Huevel manage to argue the wrong thing in interesting ways from time to time.
But Greenhouse? I can't really think of a topic where a caricature of a "typical left-wing opinion" really differs from what she actually writes.

ihasch said...

Would the system be less broken if the Democrats had managed to ram another judicial Democratic activist onto the Court to thumb their nose at the American people?

The filibuster system is outmoded and unworkable today. Go back to the Mr. Smith Goes to Washington version or forget about it.

But if we are honest the whole system is broken. The Court has a completed distorted place in our political system where it has become way too important. To a degree that has always been true. But now you have in jurisprudence the idea of a "living constitution", that judges can simply rewrite laws as they see fit and ignore the separation of powers upon which our entire system is built. They are not even paying lip service anymore. The judiciary has embraced the self-aggrandizing idea that they are some sort of sharia council, and the Democrats have embraced the idea of governing through the courts when they can no longer win at the ballot box. That is a very dangerous recipe. We have seen a toxic legitimacy crisis in recent years, and the politicos we have today are now too stupid and historically illiterate to correct course. Welcome to the idiocracy.

Mike said...

when's the last time Linda Greenhouse wrote or said anything that struck you as particularly interesting?

Didn't she have a back and forth with our Host Blogress? That was mildly interesting.

dwshelf said...

Gorsuch certainly looks like a judge ought to look.

Old white guy?


Clarence Thomas has looked like a judge ought to look for a long time now.

Dan Hossley said...

We knew this was coming. It was so predictable. Progressives will delegitimize the Supreme Court. Straight out of Rules For Radicalls. Probably a dead end for them. Can't wait for Trump's replacement for Kennedy and Ginsberg. Heads will explode.

Mr. Majestyk said...

In these trying times, I turn for comfort to the incisive words of a famous, occasionally bespectacled, American stateswoman, who ever so wisely intoned: "What difference, at this point, does it make?"

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Leo D said...

Funny how so much ink has been spilled over the filibuster rule, certainly implied by Greenhouse, but she and most everyone else it seems gives the rule an aura it certainly doesn't deserve. Think about it, they created a rule in 1841 with 50% +1 of the senators present, saying any senator can delay a vote as long as he, later he/she, can hold the floor, but the rule included an inherent opt out, that the same or a different 50%+1 senator could change/eliminate the rule at any time. We know from history that the filibuster rule had nothing to do with the Constitution nor the founding fathers, invented in 1841 in the Henry Clay/Thomas Hart Benton battle. But for 176 years it's been looked at by succeeding generations as somehow an honorable tradition. It was never, ever used against a new nominee for the Supreme Court, until now. Then 52 republicans decided Judge Gorsuch is clearly one of the most deserving, experienced and humble federal Appeals Judges to be nominated and if he could't get 8 democrats (he got three) it would be worse than a shame, it would be an outrage after the electorate through the mechanism of the Constitution made a clear choice last November what party they wanted running the White House and Congress and selecting Supreme Court justices. Now that we all know how easy it is to 'break a filibuster', at least this particular one, never before used, maybe we'll get the courage to go all the say and make the only difference between the Senate and the House, 6 year terms vs 2 year terms. The voters are disgusted with lack of action and the prime cause of lack of congressional action is the threat, not even the use, but the threat of filibuster.

Gahrie said...

The Court has a completed distorted place in our political system where it has become way too important.

Due almost entirely due to the concept of judicial review. Judicial review was not created by the Constitution, or Congress...but rather by an activist judge. The more research I do into Marshall and the Marbury case, the more I believe it to be a scheme deliberately masterminded by Marshall.

Marshall was the Secretary of State under Adams from June 30, 1800 until March 4, 1801 when the Jefferson administration took office.

Marshall was approved by the Senate to be the Chief Justice of the Supreme Court on January 27, 1801. He began acting as the Chief Justice on February 4, 1801.

So for a month he was both the Secretary of State and the Chief Justice.

During this month Marbury was appointed as a Justice of the Peace for the District of Columbia. It was Marshall's job as Secretary of State to deliver Marbury's commission to him...but somehow he forgot to do so, and Madison refused to do so when he replaced Marshall as Secretary of State.

Thus the controversy that led to the case of Marbury V Madison which allowed Marshall to create judicial review in such a way that no one would challenge him, was created by Marshall (on purpose?) while he was simultaneously Chief Justice and Secretary of State.

Could you imagine this happening today?

FryingPanHead said...

Ignorance is Bliss said...

William said...

Gorsuch certainly looks like a judge ought to look.

Old white guy?


Can you point to a more successful society made up of brownskins?

The blacks, without fail, elect the stupidest, the loudest or the most corrupt from among them when they vote D and you're whining about a middle-aged white guy who appears to be bound by the law? Give me a fucking break, jagoff.

Gahrie said...

maybe we'll get the courage to go all the (w)ay and make the only difference between the Senate and the House, 6 year terms vs 2 year terms.

Or we could repeal the 17th Amendment (and the other two remaining Progressive Amendments) and have the Senate go back to representing the States and not the people as originally designed.

cubanbob said...

The Supreme Court has been broken since Plessy if not before. FDR didn't help matters. Greenhouse is just a hack.

Eric Ivers said...

Well, I hope it is "broken" by her standards, and I hope the Republicans own it. It would be very convenient to own the Supreme Court. Things might actually be decided by what the Constitution says, instead of what a few of the black robed rascals think it should say. Penumbras and emanations equals B.S.

Brian Duff said...

The American people were so upset by the Republicans holding up Obama's Supreme Court nominee... they punished the GOP by giving them control of the White House, the Senate, the House, and the overwhelming majority of Governor's seats and State Legislatures.

Folks like Linda Greenhouse are just desperately in denial of reality.

Earnest Prole said...

Republicans stole this Supreme Court seat fair and square.

tcrosse said...

Republicans stole this Supreme Court seat fair and square.

Since Clintons Donors had already paid good money for it.

Earnest Prole said...

The confusing thing to me is that you apparently support both of them...originalism for statutes and Posnerism for Constitutional Amendments.

We all support contradictory things. I want to get up early and exercise, and yet I also want to stay up late and drink an entire bottle of port.

rcocean said...

"Or we could repeal the 17th Amendment (and the other two remaining Progressive Amendments) and have the Senate go back to representing the States and not the people as originally designed."

You need to read more history. the Senators from 1865-1913 were NOT 'Representing states'. Why people seem to be hooked on this absurd idea that having the state legislatures elect would change things is beyond me. If you think the problem with the USA is too much democracy - you're nuts.

Not only that, but people aren't going to give up political power. Period.

Scott said...

Gahrie points out that the real villain here is Marshall, and the ill-begotten doctrine of Judicial Review. Over time, the SCOTUS (and the courts in general) have been used as a super-legislature more and more, which leads to a raising of the stakes in appointment battles. At this point, the Dems see the court as their only method of achieving what they cannot achieve by democratic means. Thus the stakes are very, very high indeed.

While I want to stress that I do NOT endorse this, one must wonder if somewhere in the US right now there aren't some individuals considering what the results would be if they 'helped Father Time along" with regards to Justices Kennedy, Breyer, and Ginsburg? Perhaps the various supports of Lefty causes should consider forming a private entity to offer medical care, food tasters, and bodyguards to these oh-so-vital individuals?

hombre said...

Comment to the NYT: This article is just journalistic whining. The confirmation process now simply reflects the nation's division. Where was this author when Harry Reid invoked the "Reid option" which affected thousands of judicial decisions? Did anyone ever see a Democrat nominee get Borked?

It is indisputable that justices appointed by Republican Presidents are generally far less predictable than those appointed by Democrats. When was the last time that the "liberal bloc" failed to vote in lockstep on any matter touching the left's social/political agenda? Obviously, the left would have preferred to add to the social engineers of that "bloc," but it is absurd to suggest that the Court is "broken" because the effort was thwarted. With the possible exception of Thurgood Marshall, Democrats have not appointed a distinguished jurist to the Court since the Roosevelt.

BTW, the Texas voter ID decision is nonsense and will be reversed on appeal.

tim in vermont said...

Souter took his seat under false pretenses, invalidating the will of the electorate.

Any caterwauling from Greenhouse?

Jay Elink said...

rcocean pontificated:

"You need to read more history. the Senators from 1865-1913 were NOT 'Representing states'. Why people seem to be hooked on this absurd idea that having the state legislatures elect would change things is beyond me. If you think the problem with the USA is too much democracy - you're nuts."

***************

Why not educate us with the facts, rather than simply sneer, condescend and engage in bald assertions?

For starters , why not tell us why the original system for electing Senators was bad?

holdfast said...

Bork! Bork! Bork!

- The Swedish Chef.

Bay Area Guy said...
This comment has been removed by the author.
Bay Area Guy said...

Robert Bork was unavailable for comment.

Clarence Thomas was available for comment, opted not to comment, but has a good long-term memory. A VERY good long-term memory:)

Gahrie said...

If you think the problem with the USA is too much democracy - you're nuts.

I'm nuts then. I believe the farther and farther away from a republic and the closer to a democracy that we go, the worse things get. repealing the 17th Amendment is just a start. There are several more amendments that need to follow.

You can only eat so many sheep before one of them notices, stands up and says..."Hey.........!"

Rick Santelli was such a sheep...

Michael K said...

"Or we could repeal the 17th Amendment (and the other two remaining Progressive Amendments) and have the Senate go back to representing the States and not the people as originally designed."

You need to read more history. the Senators from 1865-1913 were NOT 'Representing states'. Why people seem to be hooked on this absurd idea that having the state legislatures elect would change things is beyond me. If you think the problem with the USA is too much democracy - you're nuts.


I guess I'm nuts then. And I've read lots and lots of history. The only thing that's hurt us as bad as the 17th is the 19th, although I'm joking about that.

Socrates might disagree with you about "too much democracy," since it was the democrats, not the aristocracy, that executed him for "Impiety."

We might yet see a few more impiety executions if Hillary or another 21st century Democrats should get elected.

Guildofcannonballs said...

Well yet again Althouse, seemingly without all that much effort as she has been doing it off and on, no no scratch that, on, on on, for 13+ years straight, gives us normals reason to question why things got so mucked up if the power elite are aware not only of the logic Buckley/Althouse espouse as few spouser's ever spoused, but actually articulating in near mathematical precision using mere words, our problems better than we are/can?

cubanbob said...

"Or we could repeal the 17th Amendment (and the other two remaining Progressive Amendments) and have the Senate go back to representing the States and not the people as originally designed."

I'm more modest in my desires. Simply repealing the 16th amendment is enough for me.

Portia said...

You sort of forced me to read the nyt a paper(?) I despise.

Robert said...

The applause for the Senate Republicans will stop when they realize their rule change put Justice Barack Obama and Chief Justice Elizabeth Warren on the court.
Heckuva job, Mitch.