Said Josh Holmes, Mitch McConnell’s former chief of staff, quoted in a NYT article floating the theory that the GOP plan not to act on an Obama nominee to replace Scalia "could alienate moderate voters and imperil incumbent Republicans in swing states."
I think Holmes's assessment is correct, especially coming after years of Obama's pushing the limits of executive power (one of the issues in a pending Supreme Court case right now). Why wouldn't the Senate make its vigorous claim to power and exert it? That, to my mind, fits the most fundamental idea about separation of powers, expressed in Federalist 51:
But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to controul the abuses of government.ADDED: It was a creed written into the founding documents that declared the destiny of a nation: Yes, we can.
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150 comments:
Perhaps I am mistaken in my long-held belief that the center of the electorate never clamors for anything.
""If anyone thinks the center of the electorate is clamoring for Obama to name another left-wing jurist they’re nuts."
If anyone thinks Obama gives a crap they're nuts.
I go for a recess appointment.
It is times such as this -- Scalia's death -- that I am reminded that Althouse, first and foremost, is a Law Blog.
I enjoy reading her thoughts and reasonings, but have a hard time caring much: it seems to me law is, more than ever, simply the endless moving of goalposts -- back and forth, sideways, higher, lower.
Reminds me of a story about Syd Barret of Pink Floyd:
"Barrett's unpredictable behaviour at the time and idiosyncratic sense of humour combined to create a song that, initially, seemed like an ordinary Barrett tune. However, as soon as the others attempted to join in and learn the song, Barrett changed the melodies and structure, making it impossible for the others to follow, while singing the chorus "Have You Got It Yet?" (Wiki)"
(More detail of this story here.)
Maybe we just ask potential Justices what they think of the Designated Hitter in American League Baseball. Would probably tell us all we need to know about their thinking.
I am Laslo.
Why wouldn't the Senate make its vigorous claim to power and exert it?
Failure to exert power is the basis of the frustration with the establishment is it not?
A recess appointment would give President Obama the biggest short-term gain. He could go as hard left as he wants, and hope for overturning of voter id, limits to his immigration policy, etc.
But such a recess appointment expires next year, and the replacement would be nominated by the next president, and confirmed by the next senate. A hard-left recess appointment would help republican turnout, improving the chances of Republicans choosing the next several justices.
I expect he will choose someone extreme enough that the Republicans will feel the need to oppose them, but popular enough that the public will support him.
I'm guessing he nominates Oprah.
http://www.americanthinker.com/blog/2016/02/dems_in_senate_passed_a_resolution_in1960_against_election_year_supreme_court_appointments.html?utm_source=twitterfeed&utm_medium=facebook
What evidence is there that Obama is going to appoint some extreme left-wing justice? He certainly hasn't yet (Sotomayer is moderately liberal, Kagan is moderate--hell, even Scalia thought she was a good choice). He knows that if he doesn't appoint a moderate, they will never even get a hearing. He is not stupid. He will appoint somebody who is moderate and under non-election year politics would breeze through.
Why is it that Republican presidents are expected to appoint the most extreme right wing justices and have the Senate accept them while Democratic presidents must appoint consensus candidates.
"I enjoy reading her thoughts and reasonings, but have a hard time caring much: it seems to me law is, more than ever, simply the endless moving of goalposts -- back and forth, sideways, higher, lower."
Yes. I'm sure glad I didn't go into the law. I made the right choice with science.
If anyone thinks the center of the electorate is clamoring for Obama to name another left-wing jurist they’re nuts.
While true the left is excellent at creating FUD. Essentially none of the circus we're about to witness will be about substance.
Perhaps this is Obama's nemesis: Attacking every non-Leftist white and black and Asian and Latin as racist or a race-traitor for 7 years means the racist piece of crap POTUS now is out of ammo, or at least his powder is wet wet wet.
Think of Jim Carrey in Liar Liar unable to say "red" only replace Carrey with Obama and red with racist.
This is a link showing, not telling, of that to which I refer.
"Why is it that Republican presidents are expected to appoint the most extreme right wing justices and have the Senate accept them while Democratic presidents must appoint consensus candidates."
No one is as clueless as this. You're just trolling.
The Democrats did a great job of accepting Bork didn't they, Freder?
Freder Frederson said...
Why is it that Republican presidents are expected to appoint the most extreme right wing justices and have the Senate accept them while Democratic presidents must appoint consensus candidates.
A good example of propaganda. In reality Dems have consistently appointed left wing jurists while Republicans have appointed centrists (Kennedy) or even liberals (Souter). The left wing is presumed to vote in concert with their politics while the supposed right wing is the group which often does not. But because those publicly commenting on the court are almost uniformly left they accept the left voting bloc as normal / expected and criticize the right for not caving enough.
In truth Scalia et al are no further to the right than Kagan and Sotomayor are to the left. But somehow anyone not left is simply defined as extreme.
"What evidence is there that Obama is going to appoint some extreme left-wing justice? He certainly hasn't yet (Sotomayer is moderately liberal, Kagan is moderate--hell, even Scalia thought she was a good choice). He knows that if he doesn't appoint a moderate, they will never even get a hearing. He is not stupid. He will appoint somebody who is moderate and under non-election year politics would breeze through."
Because they always vote as a block, never with the conservatives unlike the conservative justices, mainly Kennedy.
They should learn a lesson about balls, and how political correctness is a river a mile wide but an inch deep in America, from, yes, dare I say it, The Donald.
I am still pissed about how Souter lied, and took a legitimate elected pick from the Republicans and awarded it to the Democrats.
Since everyone knows they can run out the clock, they can hold out for someone they really want. Both sides have a realistic chance of being in a better position after the election. And team blue can make all of the hypocritical noises they want about teams red's duty to give Obama his candidate, but if Obama nominates Don Willett, they will filibuster - as they have every right to do.
Bottom line is that I don't think there is a Goldilocks candidate out there. Since it is Scalia being replaced, team red will do everything they can to defend the seat. Anyone acceptable to them would be unacceptable to team blue. Maybe later in the year, if it looks like 2017 will bring Hillary and a Dem senate, the Repubs will settle. But is anyone talking about the senate flipping?
A good example of propaganda. In reality Dems have consistently appointed left wing jurists while Republicans have appointed centrists (Kennedy) or even liberals (Souter).
Oh, let's just forget about Scalia, Alito, Roberts and Thomas. The right wing of the court is much further right than the left wing. Right now, Sotomayer is the most left wing justice. She is much more moderate than either Thomas, Alito or the late Scalia (and Roberts, but I won't include him because I know you think he is a turncoat). And compare her to Brennan, Marshall, or Stevens to see how far right the court has shifted since the Reagan administration.
Oh, and btw, Souter was hardly a liberal.
The White House knows the polling numbers on whether the voters believe the court is too left-wing or right-wing.
Because they always vote as a block, never with the conservatives unlike the conservative justices, mainly Kennedy.
That is simply untrue.
I am not sure how much attention the average voter pays to the Supreme Court. People who feel passionately about pro-life vs. pro-choice issues have always paid attention. Others, not so much. However, now that second amendment rights is on the table, I have noticed that more of my acquaintances are paying attention.
"But is anyone talking about the senate flipping?"
Very likely that the Senate will flip, given the seat that are up.
The Senate will just be exercising prosecutorial discretion.
The Democrats did a great job of accepting Bork didn't they, Freder?
Bork was a freaking nightmare. Six Republicans crossed the aisle to defeat him.
"...giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others."
“I do not believe that the solution to our problem is simply to elect the right people. The important thing is to establish a political climate of opinion which will make it politically profitable for the wrong people to do the right thing. Unless it is politically profitable for the wrong people to do the right thing, the right people will not do the right thing either, or it they try, they will shortly be out of office.”
― Milton Friedman
"The right wing of the court is much further right than the left wing."
It's also healthy to start the day with a good belly laugh. Thanks, Freder.
Turnabout is fair play. The Democrats borked Bork and attempted to bork Clarence Thomas even after Bush gave them Souter.
One of the most unseemly habits of liberals in the Obama era is the wingeing about how Republicans hate Obama.
As if politics hasn't always been hardball. As if they didn't hate GWB.
The line they are trying to push now is Republicans are trying to withhold Obama's *right* to name a Justice because they hate Obama or due to racism. Our poor president! He is so mistreated! Oh, have pity for him, the most powerful man in the world!
It's especially sad because all liberals know, if the tables were turned, exactly what they would want a Democrat Senate to do. They know the political opportunity and stakes in this situation.
It just makes the wining about poor Obama even more pathetic.
Your claim was the the Democrats always had to accept the nominee, Freder. I simply showed that they did not. Quit being an idiot.
@ Freder
Six Republicans crossed the aisle long after Teddy made his disgraceful comment and the Democrat-controlled judiciary committee voted down the nomination. Bork insisted of pushing forward.
You see, the Democrats effectively used their power to influence the makeup of the Court under a Republican president. They kept Bork off the Court. They nearly did the same against Clarence Thomas. When Miguel Estrada showed promise, they stopped him in his tracks too.
Republicans haven't done anything like that yet.
Freder Frederson said...
The right wing of the court is much further right than the left wing.
Thanks for clearing that up, Captain Obvious. While you are at it, you might want to point out that the left wing is much further left than the right wing.
The actual question is whether the right wing is further right than the left wing is left. Based on public opinion ( and how else are you going to define the relevant center ) it appears the left is slightly further left than the right is right.
The Supreme Court was a well-respected institution for its objectivity, independence, and serious scholarship. It is now little more than a City Council on steroids. reduced to nose-counting for a predetermined result. It is worth a scholarly analysis to figure out how that happened. Perhaps as early as the Warren Court substituting its ideas of rights in lieu of the Constitution. While some decisions were clearly on strong moral ground (and others on much shakier moral ground), they cut corners to do it and we are still living with the consequences. The Bork hearings were the obvious turning point, when the Chappaquiddick Kid launched a scorched earth demagoguery campaign (most of which was a pack of lies) on a great jurist. Recall it got so bad that Senate Democrats tried to subpoena Bork's movie rentals to get dirt. He tried to pull the same stunt on Alito but did not have the Senate votes any more. (Still mind boggling that the Chappaquiddick Kid sat in moral judgment on anyone). The Clarence Thomas hearings confirmed the gloves were off and the Court would no longer be treated with professionalism and objectivity.
Just a shame that a once great institution has been reduced to petty nose counting.
I think the immediate politicization of Scalia's death is doing more to hurt Republicans than democrats, for some reason.
The bottom line is that Obama is going to nominate who he wants and that person should be seriously considered. But yes, he is a lame duck president and if his nomination is weak then it's a strategy people can take to delay the nomination until after Obama's term.
Until he nominate someone, it's just masturbatory to shriek about it over the still cooling body of the now deceased Justice.
There was a time when "left wing" and "right wing" meant the rather extreme groups on both sides. Nowadays people use the terms to mean anyone left or right of center.
We need new terms.
I propose "communist" and "libertarian".
Freder Frederson: "The right wing of the court is much further right than the left wing."
LOL
Thanks Freder.
Freder Frederson: "The right wing of the court is much further [to my] right than the left wing [is to my left]."
FIFY
Based on public opinion ( and how else are you going to define the relevant center ) it appears the left is slightly further left than the right is right.
How so?
If Souter wasn't a liberal, why did he retire during Obama's term?
Oh that's right, you just make this shit up as you go along, I keep forgetting.
With the power that the courts now wield, and the diminishing relevance of State and Federal Legislatures (the peoples representatives)....delay, delay, delay! One more lib and the court will be dominated by kangaroos.
The new narrative in the mainstream media is this:
1) Scalia is dead, leaving a 4-4 Court.
2) The Court faces many interesting cases, including abortion rights, public unions (which FDR opposed on principled grounds that should be obvious to anyone with half a brain), religious exception to Obamacare-required contraception subsidy, the second amendment to the Constitution, etc.
3) This will result in lots of 4-4 decisions that will uphold lots of rightist court decisions.
4) So Scalia's death represents a danger to leftism.
That's insane.
The courts are political institutions, since so much that would have been checked and balanced elsewhere now becomes a legal issue. This is the inevitable consequence of government intrusion into the private sphere, which has changed the nature of US political institutions. The old systems exist only as nostalgia, a fantasy about what they should be but are no longer. It seems strange that so many care so much about the details of the process instead of the balance of power, which is the reality. It is a failure to face reality.
The balance of power determines legal outcomes, not reasoning or philosophy or process.
The corrupt Dems.
" Sen. Chuck Schumer (D-N.Y.) is describing current GOP calls to let the next president make a Supreme Court nomination “obstructionism”, but in 2007 Schumer said, “I will do everything in my power to prevent one more ideological ally from joining (Justices John) Roberts and (Samuel) Alito,” and recommended the Senate, “should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances.”
“The Supreme Court is dangerously out of balance,” Schumer told the American Constitution Society on July 27, 2007."
http://www.cnsnews.com/news/article/eric-scheiner/schumer-07-we-should-not-confirm-any-bush-nominee-supreme-court?utm_source=facebook&utm_medium=CNS&utm_term=facebook&utm_content=facebook&utm_campaign=b-schumer-scotus
Unfortunately, Althouse, very few of the people in power these days give a shit about these dusty old ideals. Many are not even aware of them. Nor do the people, or at least the ones we are educating today. How many humanities-history departments do you think spend much energy on these concepts? We tend to become what we are taught to be, and it's a struggle to escape perniciously vacant or one sided teaching.
buwaya puti said...
The courts are political institutions
Exactly. They are political institutions and to pretend otherwise is foolish.
Laslo "Maybe we just ask potential Justices what they think of the Designated Hitter in American League Baseball. Would probably tell us all we need to know about their thinking."
The ultimate litmus test. That question should have been put to John "The Umpire" Roberts.
Freder Frederson said...
How so?
This poll, question 24.
If the GOP controlled Senate hasn't figured out by now that their base is pissed off because they refuse to go to battle with Obama, Reid, and Pelosi; they're brain dead.
We are already expecting them to roll over and cower in the face of coordinated efforts between the White House and the mainstream media. But there's an opportunity here to prove they're not pussies.
Give the Dems the finger. Don't approve anyone. The Dems aren't very confident in Hillary becoming the next President.
"What evidence is there that Obama is going to appoint some extreme left-wing justice? He certainly hasn't yet (Sotomayer is moderately liberal, Kagan is moderate--hell, even Scalia thought she was a good choice). He knows that if he doesn't appoint a moderate, they will never even get a hearing. He is not stupid. He will appoint somebody who is moderate and under non-election year politics would breeze through."
What counts as moderate depends on where you are. I'm very used to an environment in which everyone on the Court is considered either extremely right wing, moderately right wing, or moderate. Maybe you are too.
" He will appoint somebody who is moderate and under non-election year politics would breeze through."
Oh yes. The LA Times is suggesting Deval Patrick. You look the fool when you write things like this.
If Obama was wise, which he isn't, he would appoint some moderate, as a recess appointment, assuming Hillary could replace him/her after January and use the issue of GOP resistance as a campaign issue. He won't. I doubt he could get a true moderate to participate in such an exercise.
Yeas ago, Scalia said, "The public sees us as lawyers trying to interpret law and gives us much credibility. If we act like politicians, they will treat us as politicians."
I tried to find the actual quote and saw it the other day.
Freder Frederson said...
Oh, let's just forget about Scalia, Alito, Roberts and Thomas.
As you forgot about Ginsburg? Isn't it interesting the the only way to make your case is by omitting people? Regardless the question was why the Republicans can appoint only fire breathers but in truth only Republicans have [in recent history] appointed anyone centrist or opposite leaning.
The right wing of the court is much further right than the left wing.
This is not true, the left perceives it as such because the court has successfully enacted so much of the left wing agenda.
Confirmation is simple majority, but do they they still need 60 to break a filibuster? The Thomas Confirmation was 52 to 48.
The recess-appointment concept would likely run afoul of modern politics. Most of the populace would think, hey, that's a Supreme Court Justice; how can his/her term expire?
And the political drive to affirm the appointment would be vicious.
So Obama really should appoint his wife. That's the obvious choice.
Freder thinks Chavez was a moderate. Now people are starving, not just starving, but out of coffins, in that country because they packed the courts with "moderates" by Freder's definition.
He won't make a recess appointment because that would legitimize leaving the choice to the next president.
BTW, Sanders is now toast. The rich white kid left has a new cause celebre.
Scalia was one of those who, inadvertently probably, kept the mask of reason, logic, disinterest, etc. on the process of law. It is and always was a fantasy, a ritual meant mainly to permit the losers to adjust psychologically to defeat.
Under the surface of the ancient deception reality is something else.
traditionalguy said...
Confirmation is simple majority, but do they they still need 60 to break a filibuster?
Democrats changed the rules on requiring a supermajority for lower courts, but did not change it for the Supreme Court. If Democrats had a bare majority now they would no doubt remove the requirement for a supermajority for a Supreme Court pick. There are probably enough Republican defectors to give an Obama nominee a majority, but they won't have any defectors who would side with Democrats to change the filibuster rule.
So yes, they would need 60 to vote for cloture.
The absurd attention to the process illustrated -
It is like - say someone is getting shot by a man with a revolver.
The victim is asked to pay close attention to the action of all the clever mechanical bits, the levers, springs, cams, ratchets, and the fascinating way they interact. It is all very proper and well done. Many experts on the mechanics of guns comment cleverly on various parts and processes, the nature of the ammunition, the expected muzzle velocity, the (low) probability of a jam or misfire.
But in the end the victim still gets shot.
If Obama was wise, which he isn't, he would appoint some moderate, as a recess appointment
First of all, I think it will be impossible for a recess appointment, because there will be no recess.
Secondly, a recess appointment would be nothing but raw meat for the Republicans. They would use it to further accuse Obama of subverting the will of Congress and the Constitution.
It would be the most unwise thing he could do.
I'm very used to an environment in which everyone on the Court is considered either extremely right wing, moderately right wing, or moderate. Maybe you are too.
Telling us the environment you are used to is not very helpful. Your view, as a constitutional scholar, would be very enlightening. Is the court in your view more conservative or liberal than is historically the case? Who do you consider the most left wing and right wing justices? And which wing of the court do you consider more extreme? These are all objective observations that need not reveal your personal preferences or biases.
I'm sure your commenters would love to know. Enough of that cruel neutrality bullshit.
Freder Frederson said...
First of all, I think it will be impossible for a recess appointment, because there will be no recess.
While it is certainly true that the Senate would not choose to recess now and give the President the opportunity, most of the analysis I've read says that the Senate is in recess now, the recess is not scheduled to end until February 22, and cannot end before then without the consent of the minority.
So the President could make a recess appointment, but would have to do so quickly. I don't think he will, nor do I think it would be in his interest to do so.
I suspect future Senates will take a lesson from this and will never recess again, at least if the President is of the opposite party from the Senate majority.
"First of all, I think it will be impossible for a recess appointment, because there will be no recess."
The Senate is in recess right now.
The Senate is in recess right now.
The Senate is holding pro forma sessions every three days, which effectively blocks the president's ability to make recess opponents.
Freder
A recess appointment now - even an outrageous one - will be old news by March.
Obama is a wrecker, not a builder, so he will go for a nomination after the Senate returns that will cause the most dissension and can be strung out for maximum political effect for the rest of the year.
"The Senate is holding pro forma sessions every three days, which effectively blocks the president's ability to make recess opponents."
Freder, education and reading are good for you.
They declared recess last Friday until the 22nd.
@ buwaya puti
https://www.youtube.com/watch?v=AylOv7acjl0
Perverting the Senate's Advice and Consent power to obstruct every presidential appointment for purely partisan reasons would be an insult to Scalia's originalist interpretation of the Constitution.
Perverting the Senate's Advice and Consent power to obstruct every presidential appointment
Is somebody suggesting that? I would say that the way to deal with such "perversion" would be to take it to an election.
These are all objective observations that need not reveal your personal preferences or biases.
You know what I think is the funniest thing about liberals? I mean aside from their pitiable levels of critical thinking they show? It's their complete lack of self awareness!
tim in vermont said...
Is somebody suggesting that?
Unfortunately, yes. Many Republican seem incredibly inept at politics.
The proper position is to say that they will be happy to consider any nominee, and will happily confirm any with the proper knowledge of and respect for the Constitution.
It would have the same effect, but with much better optics.
Telling us the environment you are used to is not very helpful. Your view, as a constitutional scholar, would be very enlightening. Is the court in your view more conservative or liberal than is historically the case? Who do you consider the most left wing and right wing justices? And which wing of the court do you consider more extreme? These are all objective observations that need not reveal your personal preferences or biases. I'm sure your commenters would love to know. Enough of that cruel neutrality bullshit.
I would love for the professor to answer these questions. I do disagree with the part of "objective" observations, though. Revealing the answers most certainly would reveal her personal preferences or biases.
Conservatives are not allowed to live in a bubble the way liberals are. We are mocked incessantly and forced to examine our premises almost daily. It is better that way. Listening, for example, to NPR, National Middlebrow Radio is and exercise in embarrassment for the hosts, who seem to have no idea that their interpretation of the news is not the only honest one and is somehow objectively true.
I was thinking that this weekend because my wife likes to listen to it. And here comes Freder's comment.
Unfortunately, yes. Many Republican seem incredibly inept at politics
You used the word EVERY, sorry for the all caps, but really. Did a more accurate description of the facts weaken your case?
"Officer, I had to run the red light because otherwise I would have had to stop!"
"Telling us the environment you are used to is not very helpful. Your view, as a constitutional scholar, would be very enlightening. Is the court in your view more conservative or liberal than is historically the case? Who do you consider the most left wing and right wing justices? And which wing of the court do you consider more extreme? These are all objective observations that need not reveal your personal preferences or biases. I'm sure your commenters would love to know. Enough of that cruel neutrality bullshit."
The most extreme part of the Court is the middle.
Unfortunately, yes. Many Republican seem incredibly inept at politics.
The only way for this to be true is if the Republicans have blocked every judgeship pick Obama has put forward. That hasn't happened.
But that aside - how do the Republicans lose by blocking his nominee for the USSC? If the GOP even hinted that they'd consider any nominee would bring out the same anti-RINO's who would complain saying "See? We told you he'd buckle." And they'd be right.
The base would NOT tolerate that. The senate would go 60-40 Dems in the next election. So politically, this is a plenty-smart move.
Ignorance is Bliss said...
It would have the same effect, but with much better optics.
This is kind of like the government shutdowns. The Republican message there should have been that under no circumstances would they shut down the government ( since they have no such constitutional power ), that they were concerned about the government shutting down when it ran out of money, and that they would therefore pass a budget in the house every day, and try to pass the same one in the Senate every day, but if Democrats prevented a vote, or if the President vetoed it, the Republican would be unable to overcome the Democrat's obstruction. Then go ahead and pass such budgets in the house.
Every word of it true, an accurate portrayal of what is happening.
But the idiots have to get in front of a camera and announce that they will shut the government down if they don't get the deal they want.
Conservatives are not allowed to live in a bubble the way liberals are. We are mocked incessantly and forced to examine our premises almost daily. It is better that way. Listening, for example, to NPR, National Middlebrow Radio is and exercise in embarrassment for the hosts, who seem to have no idea that their interpretation of the news is not the only honest one and is somehow objectively true.
I was thinking that this weekend because my wife likes to listen to it. And here comes Freder's comment.
I was thinking this with regard to the Madeleine Albright kerfuffle. Her walk back said essentially, "In my bubble everyone thinks that line is funny but I now see that it doesn't play well outside my bubble."
But if it wasn't already apparent, the Romney 47% remark left no doubt that there are no protective bubbles in which Republicans can speak freely.
I'm playing a Steyn-hosted old Rush show instead of listening to Rush today. (12/29/2010, random pick)
Rush goes insufferable on morality and stuff like it.
tim in vermont said...
You used the word EVERY, sorry for the all caps, but really. Did a more accurate description of the facts weaken your case?
First, no I didn't. That was Freder.
Second, I read his 'every presidential appointment' to refer to every possible nominee for the vacant seat on the Supreme Court. Maybe I misunderstood his intent, or his statement was poorly worded.
This is kind of like the government shutdowns.
As Speaker Pelosi and Senate Majority Leader Reid how Republicans were punished for that shutdown. No, Republicans were subjected to ineffective fire in the media.
I would like to nominate that dude on the Wisconsin Supreme Court who chokes the liberal women Justices. Well maybe he just blocks their aggressive necks with his hands.
I'm not sure Ginsburg would be his Buddy, but you can't have everything. But then we could get cameras in the Court to catch him or no one would believe Ginsburg dies of natural causes.
Maybe you should have used quotes then.
rehajm said...
"Failure to exert power is the basis of the frustration with the establishment is it not?"
And that's exactly why they'll act. Unless they really are colossally stupid, they understand that there is a caricature of them as do-nothing feathered-nest traitors that is driving Trump and Cruz; if they now allow Obama to do this, they will play right into that stereotype and make much more likely (they presumably doubt my assesment of the race) that those voters will send a "stick it to them" candidate.
Ignorance is Bliss said...
"A recess appointment would give President Obama the biggest short-term gain. He could go as hard left as he wants, and hope for overturning of voter id, limits to his immigration policy, etc. But such a recess appointment expires next year...."
You'd see a replay of what's happened in Virginia. The President would make a recess appointment, send the same name to the Senate, and then play "how could they possibly think about removing a sitting justice?"
Freder Frederson said...
"What evidence is there that Obama is going to appoint some extreme left-wing justice? He certainly hasn't yet (Sotomayer is moderately liberal, Kagan is moderate--hell, even Scalia thought she was a good choice)"
Because he's a progressive, and progressives believe that they have one job: Advance the ball down the field as far as you can. As to the first two picks, neither are William O. Douglas, but they're hardly Potter Stewart. Sotomayor is a dimwitted lockstep progressive who got the job because he wanted a latina and she was the only candidate. Kagan is a wonderful judge, just wrong—that's why Scalia suggested her. Because he knew that they were getting a lefty, so better a smart lefty who can provide some fun and who isn't a total chore to deal with.
Fabi said...
"The Democrats did a great job of accepting Bork didn't they, Freder?"
Mic-drop.
Freder Frederson said...
"Oh, and btw, Souter was hardly a liberal."
Hilarious. Sure, you're right, unless you squint he looks just like William Rehnquist.
Freder Frederson said...
"That is simply untrue."
It's overstated, but it's far from unfair. The number of cases in which two or more of the conservatives (usually Roberts and Alito, but in criminal procedure cases, often Scalia and Thomas) join with the progressives, plus the number of cases in which the conservatives fragment behind different opinions with different rationales (think of WRTL, for example, or McDonald, or Hein), would seem to me to be vastly more frequent than the number of cases in which the conservatives attract one or more of the progressive justices. And that's to be expected, because while we usually think of this as a 4-1-4 court, it's really a 2-2-1-3-1 court. You have... Sorry. Had. Two formalists (Scalia and Thomas), two conservatives (Roberts and Alito), a pragmatic moderate (Kennedy), three progressives (Ginsburg, Kagan, and Sotomediocrity, and a pragmatic progressive (Breyer). You'd expect more division to the right of the median.
Freder Frederson said...
"Bork was a freaking nightmare."
He was the finest man ever nominated but not confirmed. What your party did to him is a stain on their honor that it will never live down. You just don't notice it because of the giant stains on the party of being on the wrong side of the Civil War and the new deal.
Freder Frederson said...
"I suspect future Senates will take a lesson from this and will never recess again, at least if the President is of the opposite party from the Senate majority."
I think you're right about that. Any Senator who votes to allow a recess at this point is a moron. The recess and the recess-appointment power are vestiges of the days before air travel; today, Congress is never more than a few hours from assembling a quorum, a day at most. Like the third amendment, they should be abandoned as "derelicts on the waters of law," in Justice Frankfurter's evocative phrase.
"Is the court in your view more conservative or liberal than is historically the case? Who do you consider the most left wing and right wing justices? And which wing of the court do you consider more extreme? These are all objective observations…."
It's fascinating that you consider these quintessentially malleable, subjective questions to be "objective." I think that's part of your problem right there.
You just don't notice it because of the giant stains on the party of being on the wrong side of the Civil War and the new deal.
...and the Trail of Tears, and Jim Crow, and the WW II Japanese internment camps........
Failure to exert power is the basis of the frustration with the establishment is it not?
Well...failure to exert power against democrats maybe...they're actually pretty good at exerting power against conservatives.
I'm guessing he nominates Oprah.
Kamala Harris.
tim in vermont said...
Maybe you should have used quotes then.
I think this is directed at me, so...
First an apology. It was Mark Caplan that used the phrase which included the word "every", not Freder.
Second, I generally use italics, as I did with the part of your post that I quoted.
Third, what, exactly should I have used quotes on? I never included the text that you seem to have an issue with.
What counts as moderate depends on where you are. I'm very used to an environment in which everyone on the Court is considered either extremely right wing, moderately right wing, or moderate
So is every other law professor and student in the country. That's the problem.
The most extreme part of the Court is the middle.
Kennedy and Roberts?
I'd go along with that.
Gahrie said...
"Kamala Harris."
Tom Goldstein, whose guesses on such matters have time and again proven better than most people's certainty, considers and dismisses Harris in favor of Judge Paul Watford. I am only passingly familiar with Watford, but the handful of his opinions that I've read are well-written and breezy in ways reminiscent of Justice Kagan and Judge Sykes. That an appellate judge write well is everything; it's nice if the result is "right," but it's essential (no one would affirm this more readily and emphatically than Our Hero) that the court provide clear guidance, and that requires judges who can think straight and write clearly. Watford seems to meet that standard. And he would make a good replacement for Justice Ginsburg or Justice Breyer, if the situation were different. But with all due respect, this isn't just any vacancy. This is one of the most important American judges since Holmes. Maybe since Marshall. Hell, Steve Calabresi just had an op/ed in which he made the case that Scalia was the most important justice in the history of the court, and while your natural instinct is to think that overheated, it's actually not that much of a stretch; who's the competition? Rehnquist, Harlan, and Marshall, it would seem to me. (Other contenders such as Holmes and Story made their mark off the bench.) Maybe Hugo Black—maybe. So this isn't just another run of the mill appointment. This is serious stuff.
A lot of fuss over nothing, since the Democrats are retaining the White House this fall.
This is the second time McConnell committed political malpractice. The first was when he said he wanted to make Obama a one termer.
Yes, the moderates don't want Obama tilting the Court left, but they also think the president should be able to appoint justices, especially when there will be a lengthy vacancy. If you want to stop him putting in a left winger--or even delay until the next president takes over--just say "we look forward to considering Obamas pick, and hope he finds someone with Scalias stature." Then, shoot down any leftist nominee, and tell the public that clearly the president is trying to pack the court with hacks ( the "pack hack"). Same result, but you don't look unreasonable, the president does.
Of course, there's still a risk of delay--don't be so sure Hillary or Bernie doesn't take over, and of course the GOP can lose the Senate (and Schumer decides to end the filibuster because the GOP used such hardball tactics). Then you have nothing to stop nominees who could be far worse than what you might have needled from Obama.
GOP is in a lousy position. Plus, Scalia was a giant--the likelihood of getting another like that is slim.
Gahrie said...
"the WW II Japanese internment camps........"
I'm not willing to hold that one against them. I'm not saying that I think it was the right decision, or the decision that I'd have made; I don't have a strong opinion on this, and I know that it's a decision that history has scorned more deeply than almost any other decision made by a President. But it was war; we had no idea what the enemy was capable of, and the President made a tough call to safeguard the nation. Maybe it was the wrong call, and Justice Jackson made a pretty good case that it was a bad call. But I'm very wary about second-guessing it decades after the fact.
There is no chance of a nominee being approved by the Senate until late September, at the earliest- I don't care who Obama nominates- he could nominate Jeff Sessions and it still would not get approved by the Senate. By late September, it should be clear how close an election it is going to be- if Republicans think they have a chance to win, they will continue the delay until after the election. If it appears they are going to lose, they might move a nominee forward if Obama hasn't chosen someone who is a die-hard lefty, otherwise they will just sit it out and let Hillary/Biden/Sanders make the choice in January of 2017.
As for the ideological divide on the court today and last week- on any issue of political contention, you can literally predict the decisions of Breyer, Ginsburg, Sotomayor, and Kagan with almost 100% certainty. You could predict the decisions of Scalia, Thomas, and Alito with almost 100% certainty. The only Justices on the court that can't be predicted to that level are Roberts and Kennedy, though I am getting better at predicting Roberts now after the two Obamacare decisions. Only Kennedy can still mystify me.
Why is it that Republican presidents are expected to appoint the most extreme right wing justices and have the Senate accept them while Democratic presidents must appoint consensus candidates.
In what universe is Sotomayor "consensus"?
Ginsberg?
Breyer?
Kagan?
Republicans have to nominate squishes because they aren't willing to slander Dem nominees as Dems do to GOP nominees routinely.
Oh, let's just forget about Scalia, Alito, Roberts and Thomas. The right wing of the court is much further right than the left wing.
Which is why NOBODY ever wonders how the Court's Left will vote in a case (for the government), but where the conservatives will side is always the question.
Because the Left is more centrist...
Brando, this is depressing.
You lot of lawyers should consider the real world effects of an unconstrained left. Law and paperwork are pointless distractions. Real effects are felt by ordinary people. Consider California. Entirely due to bureaucratic-corporatist-legal factors.
Outside the magic bubble, the majority are poor and getting poorer - real median income is somewhere between South Carolina and Mississippi. Any Okies still around are well advised to go back to Oklahoma. Old Golden California no longer is.
Electric rates are double to 2.5x the US median. The EPA wants to make California the national model, and this will be the national effect. This, or part of it, is what Scalia blocked. Who will block it the next time? This is more devastating than an Arab oil embargo ever was. This is just one mechanism of our disaster.
Manufacturing is dead, anyone still at it here has a zombie business, waiting to flee at the earliest opportunity.
Farming is dying out.
I see the future, today. You all are facing a man-made national disaster. California is the near-ibevitable national future.
Any leftists here - disaster, of the concrete, measurable, tangible sort, is what you are supporting. And I see no recovery if the rest are trapped in the same way as California. The result will be endless generations of misery.
You just don't notice it because of the giant stains on the party of being on the wrong side of the Civil War and the new deal.
I'll agree with you about the Civil War but on the wrong side of the New Deal?! Don't think so.
And it amuses me that you accuse me of see objective standards of left and right, yet you declare with certainty that some Justices and government policies are wrong.
Oh, and btw, Japanese internment was objectively and morally racist. If it was so freaking important to defend the nation, how come there was no internment for Japanese Americans in Hawaii? And why didn't we blanket inter Germans and Italians. Hell, we even made deals with Lucky Luciano during the war.
You lot of lawyers should consider the real world effects of an unconstrained left.
Have you checked out the disastrous effect of an unconstrained right in Louisiana or Kansas?
And, if there is a point in adding to the warning, comparing California's high point versus today, considering the industries outside the bubble, the 90% of the state, the powers that be have destroyed more economic value than Chavez and Maduro did in Venezuela. The only reason we have no food shortages (yet) is because it all started from a higher point.
Take the warning, this is a desperate situation.
Both Louisianans and Kansans are richer in real terms than Californians. You can do the calculation yourself. I have been tracking it since 2004.
Get the state median incomes. Get a good state cost of living index (a commercial one like MERIC is better than the Feds as they use theirs to determine differential COLA adjustments - conflicts of interest). A simple job in Excel.
"3. The double-standard for Republicans is not shocking but it remains galling. As Jim Geraghty notes in today’s Jolt, Chuck Schumer took exactly the same position on any further Bush appointments in 2007. I don’t seem to recall the shock and outrage we’re seeing today.
4. On that note, Ruth Marcus — an often independent-minded liberal — offers some classic concern trolling of the GOP today in her column. She writes:
Finally, a Senate work stoppage would, in fact, be bad for Republicans. In the nation’s capital these days, everything is political, every institution politicized. That may be inevitable and irreparable, yet tables here have a way of turning. One party’s obstructionism ends up hurting it down the road.
Marcus is surely right that tables can turn. What she leaves out is the simple, glaring, fact that the tables are turning on Democrats who’ve been playing outrageous games with appointment process for a quarter century. When Robert Bork was defenestrated by Joe Biden, despite having said he would have no choice but to vote for someone so well-qualified, he was setting the tables for payback. When Harry Reid pulled the trigger on the nuclear option (on lower court appointments) he was warned that this would come back to haunt him. When Democrats disgustingly blocked Miguel Estrada from the bench solely because he was a Hispanic, they set the table to be turned. When Barack Obama voted to filibuster Alito, he set the table to be turned.
Cry me no tears now that Republicans are finally putting their shoulders to the table."
http://www.nationalreview.com/corner/431349/gop-must-stand-firm
buwaya puti:
The left-wing elites like their monopolies on principle. Unfortunately, the right-wing elites are predisposed to agree as an implicit matter of evolution. The persistent liberalism that develops through rejection of self-moderating, responsible religions (e.g. Christianity) in favor of a pro-choice doctrine based on a faith pulled from the dark fringes of a penumbra is a source of progressive corruption and dysfunction in advanced states of civilization and Marxist (i.e. managed) regimes. While the suppression of the masses does occur through religion or moral temperance, the opiate of the masses and elites alike is promises of dissociation of risk. Boys and girls, immature men and women, just want to have fun and stroke their egos. The elites exploit and foster this developmental retardation in order to retain their positions in the social, economic, and world order. With the marginalization and destruction of competing interests, they will inevitably run amuck and history repeats itself.
Have you checked out the disastrous effect of an unconstrained right in Louisiana or Kansas
Are people fleeing those states? It's an honest question.
Freder: "Have you checked out the disastrous effect of an unconstrained right in Louisiana or Kansas?"
LOL
What hell holes those places must be! Why can't they be more like Detroit and Venezuela?
Also search for "electric rates by state"
Electric power rates, or the differences thereof between states, in the lower 48 are driven mainly by local regulatory regimes - its a really good proxy for the effect of both long term and short term regulation.
BTW, New York is if anything far worse governed, for the bulk of its people, even than California. And various small NE states suffer from NY decisions.
Check out the electric rate table by state. Assume an EPA unconstrained. Then imagine a US where California is at the median of the rate table. That's your economic disaster right there, in cents per kilowatt-hour. That is ALL that counts, as it is an excellent proxy for all other regulatory effects. That's your measure of risk.
Everything else is just words.
buwaya puti:
The liberal domains are sustained through financial (e.g. credit/debt) and social (e.g. political) leverage. Redistributive change is critical to the left, especially at ever higher levels of accumulation and separation. Not only does it reduce individual liability, but it also exploits their competitors to pay for the upkeep of their "backyard". This is why Democrats are favored at the national level, while Republicans are favored at lower levels. The high density population centers in particular are desperate to subsidize a diverse and numerous population in order to secure a stable environment and exploit democratic leverage. The pro-choice doctrine was a god-sent in that it established a functional -- but degenerative -- principle of "eating your cake and having it too".
Enjoy it while it lasts, I suppose. Then move on.
Are people fleeing those states? It's an honest question.
Both have lower growth rates (KS 1.8%, LA 2.6%) than the national average (3.3%). BTW the growth rate in CA is 4.2%. (All figures between 2010 and 2014).
CA growth is limited to "the bubble". Like NY also much of CA growth is due to nationally headquartered companies reporting net income in the state, plus it is a heavily favored residence address for the rentier class, as is NY. It's as if one had a country containing an enclave like Monaco, attached to a huge hinterland more like Somalia. CA, like NY, has a high GINI coefficient.
The correct measure of welfare is the median income adjusted by COLA, as is done in international comparisons.
Freder Frederson said...
"I'll agree with you about the Civil War but on the wrong side of the New Deal?! Don't think so."
Might have been the winning side; still don't think that it was the right side.
"And it amuses me that you accuse me of see objective standards of left and right, yet you declare with certainty that some Justices and government policies are wrong."
Who is more "left," Justice Breyer or Justice Ginsburg? How would you objectively calculate that? Would you score each of their opinions on a scale of one to five for how "left" it was and pronounce a winner on the basis of high score? What was the more "left" position in any given case where Breyer and Ginsburg differ? Was Justice Stevens more "left" than Stevens or Ginsburg? And how do you account for time—average over career? Best year in career? These are questions that, if they have objective answers in principle, are so impossible to approach objectively that they are functionally subjective.
By contrast, words usually have determinate meaning, and where they do not, traditional rules of construction supply the shortfall—think of United States v. Santos, for example. It is very, very rare that a case does not have a correct answer.
"Oh, and btw, Japanese internment was objectively and morally racist. If it was so freaking important to defend the nation, how come there was no internment for Japanese Americans in Hawaii?"
The idea that FDR—for all his faults—was just a terrible racist who casually decided to lock up the japs for shits and giggles is not one that cries out to be taken seriously. Still, by all means continue to immolate your idols for our amusement. Please tell the American people more about how the great hero of the Democratic party undertook actions that were "objectively and morally racist."
Being from the Philippines, our generation and the previous one saw the prudence in Roosevelt's internment of the Japanese. In our country it was an almost universal experience to find out, in December 1941, that the Japanese merchant, photographer, driver, servant were secretly military agents, officers, or members of the government of occupation. This is repeated over and over and over in memoirs of wartime and everyone's family tales. A typical one was published by Enrique Zobel, then a teenager, who noted that their family driver would meet some fellow Japanese employees of the row of mansions on Dewey boulevard, of an afternoon, staring out into the bay. He felt sorry for them, thinking they were homesick for Japan. The friendly fellow turned up later in an IJN uniform. Turns out they were noting down ship movements.
For that matter the same sort of story is repeated across East Asia. Japan used the saturation method of intelligence gathering. ,
A left wing ideologue ain't happening. But we'd be in for a wild ride if Obama nominated Richard Posner.
There is a way out of this mess for both sides. Obama orders Lynch to indict Hillary Clinton for the email mess in exchange for Mitch McConnell allowing any reasonable appointment to go forward. The deal is so obvious that it practically makes itself. The Clinton trail would trump the election, no pun intended. It would suck all of the oxygen out of the room politically, which should hurt those two windbags Sanders and Trump the most. Sanders would still get the nomination but wouldn't have gained any momentum in the process. Trump would loss all of the news coverage to Hillary. The liberals could then spend the next 4 years hoping none of the liberal justices leaves the court.
Interesting twist on the Zobel testimony - when the ex-driver/IJN officer revealed himself, Zobels dad, Major Jacobo Zobel, was in the Death Camp at Capas, though he ultimately survived. Two of my great-uncles died there, one a corporal in Zobels battalion.
That sort of thing is another reason we haven't much sympathy for the interned Japanese.
Freder Frederson:
You asserted early in the thread that Obama is not dumb. I would ask that you provide evidence of that claim, please.
I will admit the president is calculating and dogmatic. You may assert that credentials should matter but I would only muse at such an assertion if you stated, unconditionally, that President George W. Bush is smart because he graduated from Harvard Business School.
(And even then, I wouldn't agree.)
4. On that note, Ruth Marcus — an often independent-minded liberal
You misspelled boilerplate.
The most dangerous period for conservatives is between January 1, 2017 (the swearing-in of Senators who won election) and January 20, 2017 (the swearing-in of the new president).
During this period, if Democrats gain control of the Senate -- even if the Republican wins the White House -- the Democrats will have their 5th lockstep Justice on the Court.
Andrew Pardue said...
"There is a way out of this mess for both sides. Obama orders Lynch to indict Hillary Clinton for the email mess in exchange for Mitch McConnell allowing any reasonable appointment to go forward."
That is the definition of playing politics with the nomination.
This isn't a game. The seat isn't a bargaining chip to be bartered for some crass political powerplay. The only reason to prevent Obama making an appointment is because of how important the court is and how likely it is that he will appoint someone who doesn't believe in the rule of law—not because the frakking Republican party hasn't wet its beak enough on the deal.
I would note that Freder Frederson thinks Louisiana is a Republican hell hole.
And people commenting here let that stupidity go. Never accept anything the dumb son of a bitch vomits at face value. Republicans gained a majority in Louisiana in 2010. That was the first time since Reconstruction.
Freder Frederson is a fool.
Agree with Simon @ 3:04 PM.
Simon
It's not a matter of playing politics so much as getting both parties to do what they ought. The President should order Lynch to indict Clinton and the Republicans should consider any reasonable nominee and for that matter Obama should pick a reasonable nominee. If it takes both sides to make a calculated decision to do the right thing then I am all for it.
There is no center left, Althouse. Only left left. On their best day the Constitution is just rolling paper.
Andrew, Obama can't indict Clinton. He knew she was doing official business outside of her government email account. Few people are talking about this now. You can bet Hillary will be if he allows her to be indicted. If it turns out he exchanged classified info with her, it will open up a whole new can of worms. Obama wants nothing more than for this to just quietly go away.
Obama knows the only thing more dangerous than an elderly, drunk Hillary is an elderly, drunk, wounded Hillary.
And people commenting here let that stupidity go.
And since Jindal was elected we have gone from a several hundred million dollar surplus to an expected $2 billion deficit next year.
It's not a matter of playing politics so much as getting both parties to do what they ought. The President should order Lynch to indict Clinton and the Republicans should consider any reasonable nominee and for that matter Obama should pick a reasonable nominee.
Done being reasonble. Being resonable gets you fucked up the ass by the best political peope. Nope. Gonna fuck up the lefts ambitions every chance I get.
Cheers
how likely it is that he will appoint someone who doesn't believe in the rule of law
That is a ridiculous statement even for you Simon. You might get someone who doesn't believe in what you think the rule of law is (which probably includes every Jurist who doesn't think Scalia was the best ever). But it is an insult, and arrogant beyond belief, to claim that judges who disagree with your narrow view of the Constitution don't believe in the rule of law.
It's not a matter of playing politics so much as getting both parties to do what they ought. The President should order Lynch to indict Clinton.
You do realize what an unprecedented abuse of power it would be for the President to order the Attorney General to indict anyone. That is more like Putin's Russia than the United States.
Freder Frederson
We are talking about Barak Obama, unprecedented abuse of power! he creates new precedents of abuse of power every week. He could let the AG know that he wouldn't be offended if an indictment was issued, if you like. Also Putin wouldn't make that kind of a deal, he would just arrest enough Republican senators to insure his appointee was confirmed. You underestimate Tsar Putin, da.
Freder Frederson, I think you are trying to say that the POTUS cannot order the Attorney General, his subordinate, to charge someone with a crime, which derives from the POTUS's executive authority. I think that's what you're saying. Can you fix my understanding?
People's reaction to the deranged Republican #NoHearingsNoVotes movement will depend on the quality of the person Obama nominates. If he nominates a Bork-like radical or Miers-like crony of the left then the Republicans will take little flak for refusing to process. If he nominates an impeccable Alito-like jurist or inspirational Thomas-like minority, they will feel great pressure to act fairly.
Freder Frederson said...
"That is a ridiculous statement even for you Simon. You might get someone who doesn't believe in what you think the rule of law is…. But it is an insult, and arrogant beyond belief, to claim that judges who disagree with your narrow view of the Constitution don't believe in the rule of law."
Justice Scalia's fundamental teaching is that the province of the judiciary is emphatically law, that law is found in duly-enacted texts, that that law is whatever the words of those texts would, in context, ordinarily convey to a reasonably well-informed English speaker when the text was enacted—and, therefore, that the law contained in those texts is fixed, determinate, unchanging, objective, and antecedent. Thus, the sole legitimate judicial method is to determine that meaning (or that range of meanings) and apply it to the case at hand.
If you don't believe that, you don't believe in the rule of law, because you don't actually believe that there is a "law" that is capable of ruling. There is no law, for example, in Roe, or Roper, or Obergefell—and no one who joined or celebrated such cases can believe in the rule of law because they don't believe in law. They believe in judges. They believe not in the American constitution, but the Iranian constitution: A council of platonic guardians in robes will decide ad hoc what the right answer is on any particular question.
"If you don't believe that, you don't believe in the rule of law, because you don't actually believe that there is a "law" that is capable of ruling."
The Law in terms of statutes can be changed by Congress but the Constitution is only changed by amendment.
"If he nominates an impeccable Alito-like jurist or inspirational Thomas-like minority, they will feel great pressure to act fairly."
That would be wise and Obama lacks wisdom.
Being from the Philippines, our generation and the previous one saw the prudence in Roosevelt's internment of the Japanese. In our country it was an almost universal experience to find out, in December 1941, that the Japanese merchant, photographer, driver, servant were secretly military agents, officers, or members of the government of occupation.
Another serious reason for internment was the The Niihau Incident.
I agree it was unjust in California but there was hysteria and the internees were not treated like Germans treated Jews or Gypsies.
Most Japanese officers spoke English and many had been educated in the US.
"If anyone thinks the center of the electorate is clamoring for Obama to name another left-wing jurist they’re nuts."
If anyone thinks that anyone other than the right-wing nutroots cares they're nuts.
It is sometimes interesting to see various branches ignore power granted to them for long stretches out of courtesy. The veto, one of the President's most powerful tools, went mostly unused until the Jackson presidency, when it began to be exercised regularly for political reasons. And what began then has continued pretty much ever since, the use of the veto as a political weapon against Congress rather than one only exercised for something truly unconstitutional.
Similarly, the Senate also has had the power to block Presidential appointments from the beginning for purely political reasons. That it hasn't done so out of courtesy for long stretches is not to say that it is wrong to do so or that it cannot begin to exercise the power. The reality of doing so however is that political rejections will become pretty normal going forward.
The only reason Supreme Court appointments have not seen a move like the Republicans are making now is that since the Democrats rejected Robert Bork for purely political reasons, aside from Bork's eventual compromise replacement Anthony Kennedy only one nomination since has come when the President's party has not controlled the Senate. That was Clarence Thomas in 1991, and Democrats seemed pretty determined to beat that one too before the "high-tech lynching" speech made them back down.
It's been 25 years since the last time a vacancy came open when the President's party hasn't controlled the Senate, so this is really the first time we've seen the politics be this openly partisan, but it's only a continuation of the political realities first established in 1987 with Bork and expressed similarly by Schumer in 2007 - not only does a party need the Presidency to get Supreme Court nominees through, it also needs to control the Senate.
Oops. Forgot Souter, funny how that happens.
Michael K said...
"The Law in terms of statutes can be changed by Congress but the Constitution is only changed by amendment."
Sure, that's true, but it doesn't change my point. Think of Ledbetter and the Ledbetter Act. Ledbetter correctly interpreted Title VII; the fact that Title VII was subsequently amended by Congress to reflect the view taken by the dissenters—and that any subsequent case would thus be decided in accordance with the dissent in Ledbetter rather than the majority—doesn't change the fact that Ledbetter was rightly decided.
I will welcome (in a schadenfreude sort of way) the Borkings and/or high-tech lynchings that will be reciprocated by Republicans for vindication of past SCOTUS confirmation hearings!
Wisdom is giving way when you have to, and fighting when you can win.
In the past, the Republicans in the House and especially the Senate have fought when they could not win (repealing Obamacare), and have given way when they could have won (immigration, judicial appointments).
What your enemy wants you to do is fight when you cannot win, and give way when you can win.
I am not a Republican, I am a conservative.
I hope the Republicans gain wisdom.
The base would NOT tolerate that. The senate would go 60-40 Dems in the next election. So politically, this is a plenty-smart move.
Anyone who Obama is likely to nominate would be anathema to the base, yes. If the Republicans allow another Ginsburg or Sotomayor on the bench, particularly when they could stop it easily, the party will be effectively dead. There will simply be no reason to vote Republican.
Hey, Freder, who was the last Democratic nominee to the Court who was blocked by the GOP? If you guessed Abe Fortas's nomination by Lyndon Johnson to be Chief Justice, you would almost be right, except that Fortas was sunk by his financial improprieties so that even the Democrats in the Democratic controlled Senate opposed him. Honestly, I can't remember any nominee to the Court by a Democratic president not being approved. This one would be the first. So, in that sense it's unprecedented - the precedents are that GOP nominees get killed, and Democratic nominees sail through. Well, tough luck, buddy. The Democrats can run on a campaign of how vital it is to switch the Supreme Court from a divided 4-4 Court with one swing vote, to a 5-3 liberal court, with one irrelevant swing vote. Let the public decide if they want to eliminate any judicial restraints on the president, and to return to the Warren era of an almighty Court declaring new rights at the drop of a Harvard Law Review article. Go for it, friend.
Freder Frederson said...
And since Jindal was elected we have gone from a several hundred million dollar surplus to an expected $2 billion deficit next year.
Ever notice how the party of 'deficits don't matter' suddenly claim to care whenever it can be pinned on a Republican? Such criticisms just aren't credible, they prove the bad faith of the commenter.
And what do we do , Simon, when those we elect usurp the law and become a law unto themselves?
You know what the real restraint on Presidential power is supposed to be?
Moderating your behavior in advance, so that Congress is on your side when you need it.
Obama came into office with 60 Democratic senators. He lost 'em because he wanted to pass Obamacare when the rest of the country didn't. Now he doesn't have them, so he won't get his 5-4 majority in the Court.
Maybe the next President who wants to pass unwanted legislation will learn from his example.
I'm very used to an environment in which everyone on the Court is considered either extremely right wing, moderately right wing, or moderate. Maybe you are too.
This is a funny blind spot that leftists have. They think of themselves as moderates because they're not as far left as, say, the Trotskyist professor from college. So anybody between Lenin and Lindsey Graham is a "moderate."
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