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  #101  
Old 06-04-2019, 10:54 AM
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Originally Posted by Bone View Post
This is so absurd it's, well, absurd. Assuming 100 senators, two senators could not satisfy Article II advice and consent any more than 49 could. A quorum of the senate is defined as a majority, and without a quorum the senate could not conduct business.
Oops, I was wrong about that -- I guess "quorum" is defined in the Constitution. Still worth a try, since the alternative is losing without a fight.

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What you're suggesting is not playing the same game, unless that game is Calvinball. Utilizing rules for political advantage - that's what Republicans have done. What you're suggesting is to not adhere to rules at all. I see only a small difference between that and political assassinations, which I think is bad. I'm not sure if you would leave that possibility open under the guise of 'try anything'.
"Try anything" without violence, IMO. And I see no reason to believe that your view of "the rules" is any better than mine or anyone else's, at least based on this argument-free paragraph. Trying stuff like this (assuming a similar scenario to the Garland nomination) could result in nothing worse than McConnell winning. When the worst-case scenario is the status quo, then that sounds like something worth considering, when the alternative is losing without a fight.

Last edited by iiandyiiii; 06-04-2019 at 10:59 AM.
  #102  
Old 06-04-2019, 10:55 AM
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Originally Posted by The Other Waldo Pepper View Post
All this time later, I still don’t get why that’s the dividing line.

Imagine if — one by one — enough Senators had looked into the camera and said to Obama on national television, “we’ll vote against anyone you pick. Have we now made that clear? We’re telling you not to bother, since we won’t consent.” And then Obama nominates a guy, and the Senators say, “just to make sure: you get that we’re going to chuckle while going through the motions, and that the answer is going to be ‘no’, right? You’re not some dimwit hereby getting encouraged to try this a second and a third time? Because, on the off chance that you are that foolish, we’re each going to walk up to a podium to slowly and patiently explain that you were told what’d happen, and that it’s now happening, and that the answer will always be ‘no’. Maybe it’ll get through to you? No? Do you need it even slower, and in smaller words?”

The objection, years later, is that that would be so much less bad?
Yes, it would have less bad, because then there would have been irrefutable evidence that the GOP's motives had nothing to do with the good of the country and everything to do with saying "fuck you" to Obama. Not there was ever much doubt about that.
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  #103  
Old 06-04-2019, 10:56 AM
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Silence equaling consent is not a good standard in any realm.
Silence no more constitutes "advice" than it does "consent.
  #104  
Old 06-04-2019, 10:59 AM
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I do so love reading "Elections have consequences" solemnly invoked in posts explaining why a Democrat's election as President did not, but an election that hadn't even been held yet did.

Don't kid yourself, guys. You cheated and got away with it, and we all know it, including you. Might as well admit it.
  #105  
Old 06-04-2019, 11:08 AM
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Originally Posted by iiandyiiii View Post
"Try anything" without violence, IMO. And I see no reason to believe that your view of "the rules" is any better than mine or anyone else's, at least based on this argument-free paragraph. Trying stuff like this (assuming a similar scenario to the Garland nomination) could result in nothing worse than McConnell winning. When the worst-case scenario is the status quo, then that sounds like something worth considering, when the alternative is losing without a fight.
How do you say this when you just acknowledged that bit about a quorum? You were suggesting acting in direct contradiction to the constitution - I'd say my view of the rules is better than yours in that regard. Your suggestion of trying stuff was to violate the constitution. Now if you're withdrawing that suggestion, then I'd look at any other suggestion on the merits. But that one, that one is absurd and proscribed.
  #106  
Old 06-04-2019, 11:16 AM
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How do you say this when you just acknowledged that bit about a quorum? You were suggesting acting in direct contradiction to the constitution - I'd say my view of the rules is better than yours in that regard. Your suggestion of trying stuff was to violate the constitution. Now if you're withdrawing that suggestion, then I'd look at any other suggestion on the merits. But that one, that one is absurd and proscribed.
Your understanding of a quorum was better than mine, but I just fixed that.

But Senators meeting isn't in violation of the Constitution. Neither are "shadow hearings" or "shadow votes". If silence can constitute "advice", then clearly the commonly understood meanings of words aren't quite enough to interpret the Constitution. I'm suggesting trying anything non-violent that just might force any possible change to the status quo, because the status quo (in this specific scenario) is broken. Force the SCOTUS to get involved and take a position -- even up to having Garland walk into the SCOTUS building and assume that the Senate's silence constituted "consent" (if silence can be "advice", then why can't it be "consent", when in all other cases lack of consent has required a vote).

The alternative is McConnell wins and wins again with no struggle.

You seem to be operating under an assumption that our system actually is working. I am not operating under that assumption. Our system is broken in many ways. Stuff like this is what happens in broken systems, and stuff like this is what motivates broken systems to be fixed.
  #107  
Old 06-04-2019, 11:20 AM
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History tells us that broken systems like this are eventually fixed or destroyed. History tells us that the status quo doesn't last for broken systems. Hopefully this broken system will be fixed without violence.
  #108  
Old 06-04-2019, 11:21 AM
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Originally Posted by iiandyiiii View Post
...if silence can be "advice", then why can't it be "consent", when in all other cases lack of consent has required a vote...
This bit is wrong. it's been detailed on this site elsewhere, but not all SCOTUS nominees have had a vote, and that non-vote has not been understood as the Senate consenting to the President's nominee.
  #109  
Old 06-04-2019, 11:25 AM
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That's true. Constitutional democracies work because and only because the people have wanted them to. They have historically begun to collapse when people no longer respected the principles the constitutions stood for, or put party or personal interest above them without consequence often enough. We now have a party, and its leadership, and its supporters, who do not respect our Constitutional principles. Examples can be found in this very thread.
  #110  
Old 06-04-2019, 11:28 AM
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Originally Posted by iiandyiiii View Post
Your understanding of a quorum was better than mine, but I just fixed that.

But Senators meeting isn't in violation of the Constitution. Neither are "shadow hearings" or "shadow votes". If silence can constitute "advice", then clearly the commonly understood meanings of words aren't quite enough to interpret the Constitution. I'm suggesting trying anything non-violent that just might force any possible change to the status quo, because the status quo (in this specific scenario) is broken. Force the SCOTUS to get involved and take a position -- even up to having Garland walk into the SCOTUS building and assume that the Senate's silence constituted "consent" (if silence can be "advice", then why can't it be "consent", when in all other cases lack of consent has required a vote).

The alternative is McConnell wins and wins again with no struggle.

You seem to be operating under an assumption that our system actually is working. I am not operating under that assumption. Our system is broken in many ways. Stuff like this is what happens in broken systems, and stuff like this is what motivates broken systems to be fixed.
First - it's not true that all other cases lack of consent has required a vote. There is a well established history of the Senate not voting on SCOTUS and lower court nominees.

Second - you seem to be under the impression that silence or not holding a vote is being construed as Article II advice and consent. It's not. Therefore, your whole line of argument falls. SCOTUS judges get confirmed with advice and consent of senate, but if the senate does nothing, then they don't get confirmed. Doing nothing doesn't mean advice and consent, it just means doing nothing.

Third - If Garland tried to seat himself, it would be only slightly different than another random person trying to seat themselves. I would expect ejection due to trespass. I could equally assume the Congress and President's silence as abdication and crowning me Super Duper King for Life. Both of those assumptions would be on equal footing.

Fourth - SCOTUS only takes a position when a matter is brought before them and they have jurisdiction to opine. I'm not sure what the true conflict would be, or who would have standing, or even what the question presented could be. But if those things are resolved, then having SCOTUS weigh in is a potential, if not unlikely path.

But to actually "fix" what you consider broken, it's not that difficult and can be done within the existing framework of rules that currently exist. The Senate can adopt rules that control how nominees are handled, time frames, votes, etc. Of course, they can change their own rules fairly easily so while that would be a fix, it would only be operative for as long as the Senate wants it to be so. And if they wanted it to be so, they don't need rules to force it. Another fix is for the Congress to pass a law that illustrates a specific process. They can do that and it would be slightly more binding than a self adopted rule. Another fix is a constitutional amendment which would be even more binding. Those are real changes that could transpire. The other stuff, Garland seating himself, a few senators getting together and pretending they have a quorum - those are fundamentally unserious.
  #111  
Old 06-04-2019, 11:29 AM
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Plenty of SCOTUS nominees have withdrawn, or had their nominations withdrawn by the POTUS, and plenty have been voted down. No nominees have been nominated (and not withdrawn) with no Senate action for ~ 1 year.
  #112  
Old 06-04-2019, 11:29 AM
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But it wasn't just "failing to vote on a Supreme Court nominee." It was an intentional move in a strategy to pack the Supreme Court with conservative Republican justices. The second move happened the other day when Mitch said he WOULD fill a Supreme Court vacancy if one comes up, as much as admitting that his reason for not holding hearings on Garland "because it was an election year" was utter crap. Which of course, everyone knew at the time. Glad I could clear that up for you. Fighting ignorance and all that, ya know.
It was an intentional move to leverage the political power that Sen. McConnell thought the GOP had in the situation. Remember: had the election gone differently, it might thoroughly have backfired on him; Garland was, after all, a relatively moderate pick. Had Clinton won, she could easily have nominated someone else more "liberal" and had the Senate not staying in Republican control, then the GOP's power to control the pick would have evaporated. Again, I say that it simply wasn't worth collective outrage over. My objections to it have more to do with the fact that it invites the Democratic Party to escalate the battle further, as I indicated.

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The vast majority of Americans don't pay attention to anything.

However, the vast majority of Americans who do pay attention to this particular stuff thought it was heinous and worse. And now want revenge and retribution. We'll be happy to remind you of why when that happens, so that you can't have any complaints about it.
Well, yeah, we sure saw all that outrage just pour itself all over the Senatorial elections in the last cycle, didn't we? I mean, it's just revenge and retribution everywhere you go!

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The Senate was constitutionally obligated to vote on Garland. They could have voted against him, even on purely partisan grounds: That is their right, odious though it may be. But they were obligated to hold the vote. Yes, I do think that our elected officials shirking their Constitutional obligations is pretty heinous.
The Senate has no such Constitutional obligation. Point to me where you think it does? The Constitution merely requires that the President appoint Supreme Court judges "by and with the Advice and Consent of the Senate". So, he cannot appoint a judge without getting "Advice" and "Consent" from the Senate. But there is no requirement that "Advice and Consent" include a vote.

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I'm not sure that's a very good metric. What things in American politics in the past 20 years HAVE 'horked off' a majority of Americans?
In the last 20 years? Easy answer coming in a minute. But in my lifetime? Goodness, let's start with Watergate? And if you want something that got a really really large number of Americans horked off enough to go to the polls and vote for change, within the last 20 years, let's look at the 2010 midterms and the energizing effect of the ACA. So, yeah, it's quite possible for the American public to get all politically energized about stuff. Contrary to the opinion of the more "liberal" members of this board, the Garland nomination simply isn't one of them.
  #113  
Old 06-04-2019, 11:32 AM
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Originally Posted by iiandyiiii View Post
Your understanding of a quorum was better than mine, but I just fixed that.

But Senators meeting isn't in violation of the Constitution. Neither are "shadow hearings" or "shadow votes". If silence can constitute "advice", then clearly the commonly understood meanings of words aren't quite enough to interpret the Constitution. I'm suggesting trying anything non-violent that just might force any possible change to the status quo, because the status quo (in this specific scenario) is broken. Force the SCOTUS to get involved and take a position -- even up to having Garland walk into the SCOTUS building and assume that the Senate's silence constituted "consent" (if silence can be "advice", then why can't it be "consent", when in all other cases lack of consent has required a vote).
So when someone points out your suggestion is directly unconstitutional, you "fix" the problem by ignoring it and say it's a "shadow vote" or something?

You can't force the SCOTUS to take a position. Garland would never have agreed to the stunt you're suggesting. Even in a "try everything" situation, there are dumb ideas.
  #114  
Old 06-04-2019, 11:35 AM
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First - it's not true that all other cases lack of consent has required a vote. There is a well established history of the Senate not voting on SCOTUS and lower court nominees.
There's no history of SCOTUS nominations with no action by the Senate for a year (at least according to my googling).

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Second - you seem to be under the impression that silence or not holding a vote is being construed as Article II advice and consent. It's not. Therefore, your whole line of argument falls. SCOTUS judges get confirmed with advice and consent of senate, but if the senate does nothing, then they don't get confirmed. Doing nothing doesn't mean advice and consent, it just means doing nothing.
According to one possible interpretation, perhaps. Maybe even the "correct" one. Has the SCOTUS ruled on this? If not, then it should be forced.

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Third - If Garland tried to seat himself, it would be only slightly different than another random person trying to seat themselves. I would expect ejection due to trespass. I could equally assume the Congress and President's silence as abdication and crowning me Super Duper King for Life. Both of those assumptions would be on equal footing.
Perhaps on paper, but in reality it could work out differently. Especially with a supporting DoJ opinion. Perhaps, anyway. At worst McConnell wins, which happens anyway.

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Fourth - SCOTUS only takes a position when a matter is brought before them and they have jurisdiction to opine. I'm not sure what the true conflict would be, or who would have standing, or even what the question presented could be. But if those things are resolved, then having SCOTUS weigh in is a potential, if not unlikely path.

But to actually "fix" what you consider broken, it's not that difficult and can be done within the existing framework of rules that currently exist. The Senate can adopt rules that control how nominees are handled, time frames, votes, etc. Of course, they can change their own rules fairly easily so while that would be a fix, it would only be operative for as long as the Senate wants it to be so. And if they wanted it to be so, they don't need rules to force it. Another fix is for the Congress to pass a law that illustrates a specific process. They can do that and it would be slightly more binding than a self adopted rule. Another fix is a constitutional amendment which would be even more binding. Those are real changes that could transpire. The other stuff, Garland seating himself, a few senators getting together and pretending they have a quorum - those are fundamentally unserious.
"Unserious" stuff actually happens in reality sometimes. Trump was an unserious candidate, and he is an unserious president. Doing nothing for a reasonable SCOTUS nominee is "unserious". Lots of things are unserious. The Democrats should consider some "unserious" options, when the alternative is losing without a fight. Especially when the Republicans have gotten some wins by doing "unserious" things.

This is the kind of thing that happens in a broken system. It's actually pretty benign compared to the other options for broken systems.

Last edited by iiandyiiii; 06-04-2019 at 11:36 AM.
  #115  
Old 06-04-2019, 11:38 AM
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Originally Posted by Bone View Post
Not even close. It is a faith based position that has no basis in reality.
'The way I interpret the Constitution is the right way, everyone else is wrong.'

This is the Dope, not some bullshit place where you can simply assert something like that.
  #116  
Old 06-04-2019, 11:39 AM
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Bone, can we quote you on that in gun threads?
  #117  
Old 06-04-2019, 11:40 AM
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And if you want something that got a really really large number of Americans horked off enough to go to the polls and vote for change, within the last 20 years, let's look at the 2010 midterms and the energizing effect of the ACA.
Got the numbers on that?

ETA: If you've got to go back 45 years to Watergate, that's just saying it all but never happens.

Last edited by RTFirefly; 06-04-2019 at 11:43 AM.
  #118  
Old 06-04-2019, 11:46 AM
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So any means are justified so long as it keeps the other side from winning? Do you realize who this sounds like?
We're talking about procedural means.

And yes, I'm comfortable with saying that the Dems need to play hardball with respect to procedure to whatever extent they need to.

The ends justify changing Senate rules, passing new laws, etc.
  #119  
Old 06-04-2019, 11:48 AM
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This is the kind of thing that happens in a broken system. It's actually pretty benign compared to the other options for broken systems.
It isn't the system that's failed, but the people to whom it is currently entrusted. We have a party that is devoted to finding clever ways around the system for what they perceive to be their own interest, and who perceives the other party as the actual enemy rather than fellow citizens with somewhat different but still valid priorities. That party has supporters who are happy to cherry-pick the Constitution or even lie to themselves about what it says and means, congratulating themselves on solving a puzzle, rather than respecting and abiding by the principles of democracy that underlie it. They often even call themselves "law abiding citizens", just like the loyal subjects of an autocracy do.

No, the problem is not the system, it's worked for centuries. The problem, as usual, is people lying to themselves.
  #120  
Old 06-04-2019, 11:56 AM
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It isn't the system that's failed, but the people to whom it is currently entrusted. We have a party that is devoted to finding clever ways around the system for what they perceive to be their own interest, and who perceives the other party as the actual enemy rather than fellow citizens with somewhat different but still valid priorities. That party has supporters who are happy to cherry-pick the Constitution or even lie to themselves about what it says and means, congratulating themselves on solving a puzzle, rather than respecting and abiding by the principles of democracy that underlie it. They often even call themselves "law abiding citizens", just like the loyal subjects of an autocracy do.

No, the problem is not the system, it's worked for centuries. The problem, as usual, is people lying to themselves.
A better-crafted system would make it harder or impossible for bad people to do this kind of thing. The rules could clearly state that the Senate is required to vote on nominees, for example, within 60 days, or something like that, and a lack of a vote = implied consent.
  #121  
Old 06-04-2019, 11:59 AM
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Quoth Bone:

This is so absurd it's, well, absurd. Assuming 100 senators, two senators could not satisfy Article II advice and consent any more than 49 could. A quorum of the senate is defined as a majority, and without a quorum the senate could not conduct business.
Assuming two senators constitute a quorum is at least less absurd than the Republican position that one senator is a quorum.
  #122  
Old 06-04-2019, 12:04 PM
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Assuming two senators constitute a quorum is at least less absurd than the Republican position that one senator is a quorum.
I'm guessing this has something to do with the way Republicans were denying recess appointments? I don't remember them calling one Senator a quorum. What are you talking about?
  #123  
Old 06-04-2019, 12:04 PM
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'The way I interpret the Constitution is the right way, everyone else is wrong.'

This is the Dope, not some bullshit place where you can simply assert something like that.
My interpretation is also consistent with the entire history of the country, and basically everything that's ever been done. Your assertion was that it was debatable whether the Senate was obligated to vote on Garland. If you want to hang your hat on the fact that people can debate it, sure that's an out. That's on par with saying the earth is flat is debatable. I mean, sure people can debate it.

All we need do is look at Garland - the assertion is that the senate was obligated to take a vote. They didn't. What was consequence of not meeting that obligation? They don't seem too obligated to me. But feel free to present any semblance of evidence that suggests the Senate bears such an obligation.

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There's no history of SCOTUS nominations with no action by the Senate for a year (at least according to my googling).
A year seems arbitrary. But yes, none for greater than a year. There still isn't any history of any SCOTUS nominations with no action by the Senate for a year, including Garland. His nomination stalled for 293 days. No matter - the substantive point is that the Senate is not required to have a vote, have a hearing, or take any action whatsoever with regard to judicial nominations.

For lower courts, the Senate has also blocked a vote on Miguel Estrada, whose nomination lasted 848 days before Estrada withdrew his name from further consideration.

So yeah, the Senate doesn't need to vote on judges, ever.
  #124  
Old 06-04-2019, 12:04 PM
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I do so love reading "Elections have consequences" solemnly invoked in posts explaining why a Democrat's election as President did not, but an election that hadn't even been held yet did.

Don't kid yourself, guys. You cheated and got away with it, and we all know it, including you. Might as well admit it.
I agree with this sentiment. It’s shady to not even hold the vote. Governing and social life in general requires abiding by norms written and unwritten.
  #125  
Old 06-04-2019, 12:05 PM
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Another option would have been for the President of the Senate to override McConnell and hold the vote anyway. And yet another option would have been for Obama to declare that he was interpreting the lack of any vote against Garland as consent.
Is there an actual mechanism for the President of the Senate to override anything? It is my understanding that he gets to break a tie, but that's pretty much it.

https://en.wikipedia.org/wiki/Presid...#United_States
  #126  
Old 06-04-2019, 12:07 PM
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A year seems arbitrary. But yes, none for greater than a year. There still isn't any history of any SCOTUS nominations with no action by the Senate for a year, including Garland. His nomination stalled for 293 days. No matter - the substantive point is that the Senate is not required to have a vote, have a hearing, or take any action whatsoever with regard to judicial nominations.
Perhaps some "unserious" action could force SCOTUS to rule on this. Maybe even SCOTUS would rule that the Senate needs to hold a vote.

"Unserious" has been working for the Republicans... maybe the Democrats should try it too. At least when the alternative is total capitulation.

Last edited by iiandyiiii; 06-04-2019 at 12:07 PM.
  #127  
Old 06-04-2019, 12:14 PM
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Originally Posted by iiandyiiii View Post
Perhaps some "unserious" action could force SCOTUS to rule on this. Maybe even SCOTUS would rule that the Senate needs to hold a vote.

"Unserious" has been working for the Republicans... maybe the Democrats should try it too. At least when the alternative is total capitulation.
Unserious is also bathing in unicorn tears. There's things that are unlikely, and there are things that are super unlikely. Both can be unserious, but not the same. Suggesting that nude jumping jack dance offs would be persuasive is unserious too.

And the alternative isn't total capitulation. The alternative is changing the rules to reflect the will of the people. I laid out multiple viable ways this can be done. It's like saying, I don't like the Mayor in my city, I really want a different person instead. Then someone says, how about you persuade enough people to vote for your desired candidate. And the reply is, no, I'm just going to put a giraffe there instead and maybe people will go along with it. I guess that's an option, but it won't work and there are other viable options that will.

You know, win elections.
  #128  
Old 06-04-2019, 12:18 PM
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Perhaps some "unserious" action could force SCOTUS to rule on this. Maybe even SCOTUS would rule that the Senate needs to hold a vote.

"Unserious" has been working for the Republicans... maybe the Democrats should try it too. At least when the alternative is total capitulation.
Please tell us how you imagine SCOTUS being forced to make a ruling. I guess step (a) is getting an experienced judge to just show up and start grabbing a seat on the bench. What's step (b)?

Last edited by CarnalK; 06-04-2019 at 12:19 PM.
  #129  
Old 06-04-2019, 12:20 PM
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Unserious is also bathing in unicorn tears. There's things that are unlikely, and there are things that are super unlikely. Both can be unserious, but not the same. Suggesting that nude jumping jack dance offs would be persuasive is unserious too.

And the alternative isn't total capitulation. The alternative is changing the rules to reflect the will of the people. I laid out multiple viable ways this can be done. It's like saying, I don't like the Mayor in my city, I really want a different person instead. Then someone says, how about you persuade enough people to vote for your desired candidate. And the reply is, no, I'm just going to put a giraffe there instead and maybe people will go along with it. I guess that's an option, but it won't work and there are other viable options that will.

You know, win elections.
I'm in favor of that tactic as well. That doesn't rule out trying the "unserious" routes, ala Trump and McConnell, as well. If the Democrats win the Presidency in 2020 but not the Senate, and there's a SCOTUS vacancy in year 1, and the Senate refuses to consider it, then realistically something will happen. Something will give. I don't know what that will be, but it's not realistic to expect that the vacancy will sit for 4 years or more. It may involve something similar to these "unserious" suggestions that forces something to change. Do you think the vacancy will sit, or something will force the Senate to action?
  #130  
Old 06-04-2019, 12:21 PM
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Please tell us how you imagine SCOTUS being forced to make a ruling. I guess step (a) is getting an experienced judge to just show up and start grabbing a seat on the bench. What's step (b)?
Presumably filing a lawsuit (maybe that would even be step (a)).
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Old 06-04-2019, 12:22 PM
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You know, win elections.
How'd that work for Obama?
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Old 06-04-2019, 12:22 PM
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My interpretation is also consistent with the entire history of the country, and basically everything that's ever been done.
Oh goody, more of the same.
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Old 06-04-2019, 12:24 PM
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How'd that work for Obama?
After the first year, the Dems lost a Senate race in MA, and the GOP had a 41-59 Senate majority.

Which definitely gets us back to the point about Dems needing to play hardball with respect to procedure.
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Old 06-04-2019, 12:24 PM
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A better-crafted system would make it harder or impossible for bad people to do this kind of thing. The rules could clearly state that the Senate is required to vote on nominees, for example, within 60 days, or something like that, and a lack of a vote = implied consent.
The system also permits, even encourages, amendment when such troubles with unworthy trustees appear. It isn't broken.
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Old 06-04-2019, 12:26 PM
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The system also permits, even encourages, amendment when such troubles with unworthy trustees appear. It isn't broken.
I disagree. Amendments are pretty much impossible in the present. If the broken-ness can't be fixed, then it's still broken. Even if hypothetically it could be fixed... but hypothetical ain't reality. IMO, of course.

Last edited by iiandyiiii; 06-04-2019 at 12:26 PM.
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Old 06-04-2019, 12:40 PM
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Presumably filing a lawsuit (maybe that would even be step (a)).
Have a read:
https://en.m.wikipedia.org/wiki/Political_question
  #137  
Old 06-04-2019, 12:43 PM
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So then maybe a lawsuit would end up being ruled as "nonjusticiable". Or maybe not. There's nothing lost when the alternative is McConnell still wins.

I'm sure McConnell hopes that the Democrats do nothing should this happen again, but hopefully the Democrats won't do what McConnell wants them to do. Maybe there's even some way for the Democrats to win. We won't know unless they actually, you know, fight.
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Old 06-04-2019, 12:54 PM
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This isn't "maybe". It would be ruled that way. It's almost the definition of a political question. Your "try anything" suggestions would probably be more useful if you accept the basic reality of the situation.
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Old 06-04-2019, 12:57 PM
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This isn't "maybe". It would be ruled that way. It's almost the definition of a political question. Your "try anything" suggestions would probably be more useful if you accept the basic reality of the situation.
So says CarnalK, but maybe creative lawyers could fashion an argument that could get past that hurdle. Or maybe not. In any case, there's nothing to lose by trying this (along with many other strategies), should this scenario come up.

Even if you're right, we lose nothing by trying different strategies.
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Old 06-04-2019, 12:59 PM
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All of this also presumes justices (SCOTUS and otherwise) are honest and well-meaning arbiters of the Constitution and law. I don't make that presumption any more. The judicial branch is another political branch. This is a bad thing, but it's still true (IMO), and it should be considered when making political strategy.

Last edited by iiandyiiii; 06-04-2019 at 01:00 PM.
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Old 06-04-2019, 01:05 PM
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So says CarnalK, but maybe creative lawyers could fashion an argument that could get past that hurdle. Or maybe not. In any case, there's nothing to lose by trying this (along with many other strategies), should this scenario come up.

Even if you're right, we lose nothing by trying different strategies.
Maybe your stupid idea cobbled together with surprising ignorance of the legal framework could work. Maybe! We got nothing to lose by trying stupid ignorant strategies! So says iiandyiiii.
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Old 06-04-2019, 01:07 PM
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... Even if you're right, we lose nothing by trying different strategies.
Do you know what "opportunity cost" means?
  #143  
Old 06-04-2019, 01:07 PM
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Maybe your stupid idea cobbled together with surprising ignorance of the legal framework could work. Maybe! We got nothing to lose by trying stupid ignorant strategies! So says iiandyiiii.
Even if you're right, it's no worse than a strategy of doing nothing, should this scenario come up again.

Though it's not like the Democratic leadership is listening to me. We're all just shooting the shit here. Hopefully you're enjoying this process of floating ideas for discussion as much as I am.
  #144  
Old 06-04-2019, 01:08 PM
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Assuming two senators constitute a quorum is at least less absurd than the Republican position that one senator is a quorum.
That's not the Republican position. The Republican position is simply that a quorum of the Senate never granted their "advice and consent" to Garland, therefore he's not a SCOTUS justice.
  #145  
Old 06-04-2019, 01:11 PM
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... We have a party that is devoted to finding clever ways around the system for what they perceive to be their own interest, and who perceives the other party as the actual enemy rather than fellow citizens with somewhat different but still valid priorities. ...
Based on this thread, it sounds like you've just described the Democratic Party.
  #146  
Old 06-04-2019, 01:19 PM
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Maybe you should have read it first.
  #147  
Old 06-04-2019, 01:21 PM
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This isn't "maybe". It would be ruled that way. It's almost the definition of a political question. Your "try anything" suggestions would probably be more useful if you accept the basic reality of the situation.
I was more inclined to believe you before reading your cite.

If a President should bring before the Federal courts a claim that the Senate was acting in contravention of the Constitution, which characteristics of a political question, per Baker v. Carr, would you say that would have?
  #148  
Old 06-04-2019, 02:05 PM
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The vast majority of Americans don't pay attention to anything.

However, the vast majority of Americans who do pay attention to this particular stuff thought it was heinous and worse. And now want revenge and retribution. We'll be happy to remind you of why when that happens, so that you can't have any complaints about it.
Technically, no, there's no language that forces the Senate to move on a judicial candidate nominated by the opposition party. But behaving in good faith is the best way to preserve a political system that operates on negotiation. When you pull a stunt like the kind McConnell did, no, there's nothing in the Constitution that forbids it, but as you point out, the GOP is essentially communicating that they can't be negotiated with. Of course this has been apparent for a while when they tried to filibuster everything Obama did when Dems had the majority. When Democrats regain power they will do whatever it takes to get what they need done, even if it means operating against the spirit of negotiation and more so in the spirit of oppression. The GOP will have nobody to blame but themselves. Unfortunately, I can't say that this is a good outcome because it begets a perpetual cycle of grievances and desires for revenge. It destabilizes a democratic government over time.
  #149  
Old 06-04-2019, 02:22 PM
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Technically, no, there's no language that forces the Senate to move on a judicial candidate nominated by the opposition party. But behaving in good faith is the best way to preserve a political system that operates on negotiation. When you pull a stunt like the kind McConnell did, no, there's nothing in the Constitution that forbids it, but as you point out, the GOP is essentially communicating that they can't be negotiated with. Of course this has been apparent for a while when they tried to filibuster everything Obama did when Dems had the majority. When Democrats regain power they will do whatever it takes to get what they need done, even if it means operating against the spirit of negotiation and more so in the spirit of oppression. The GOP will have nobody to blame but themselves. Unfortunately, I can't say that this is a good outcome because it begets a perpetual cycle of grievances and desires for revenge. It destabilizes a democratic government over time.
"We should reverse the presumption of confirmation" - Chuck Schumer, 2007

"wish granted" - Senator Mitch McConnell, 2016, probably
  #150  
Old 06-04-2019, 03:00 PM
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I was more inclined to believe you before reading your cite.

If a President should bring before the Federal courts a claim that the Senate was acting in contravention of the Constitution, which characteristics of a political question, per Baker v. Carr, would you say that would have?
A "lack of judicially discoverable and manageable standards for resolving it; "
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