# Can Democrats actually stop the nomination of Brett Kavanaugh? **URL:** \ **Category:** Politics & Elections\ **Created:** [September 4, 2018, 12:49pm UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733 "2018-09-04T12:49:41Z")\ **Posts on this page:** 20\ **Page:** 229
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [September 28, 2018, 2:13am UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/4561 "2018-09-28T02:13:11Z")
> [@Whack-a-Mole](#): > > They passed that bogus law because Roosevelt threatened to stack the court. Doesn’t mean the law holds. No, the number of justices was first set at 9 in the 1860s, and as I’ve pointed out, Congress has been setting the number of judges on the Supreme Court for as long as the Supreme Court has existed. > [@](#): > > As I showed if you can legislate the size of the court you bypass the senate’s explicit role in removing judges and needing a 2/3 majority. A helluva lot easier for a new congress that has 50% majority to resize the court. > > Republicans could do that right now if you are right and I am wrong. Get rid of all the liberals in one fell swoop. > > You ok with that? No, they couldn’t, because the Constitution still specifies that an appointment is for life except in case of impeachment. The only way to remove them is to impeach them or reduce the size of the Court at the point of their retirement. > [@Whack-a-Mole](#): > > Find where congress can set its size in the constitution and square that with the constitutional requirement for a 2/3 majority to remove a judge (if 50% resize the court down you can remove a judge by your reckoning). Article III, Section 3; “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior.” ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [September 28, 2018, 2:13am UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/4562 "2018-09-28T02:13:41Z")
Lindsey Graham has sent an email blast saying, > [@SC Senator Lindsey Graham](#): > > I spoke today about my support for Judge Brett Kavanaugh’s nomination to the Supreme Court. > Simply put, the treatment of Judge Kavanaugh has been the most unethical sham I’ve seen since I’ve been in politics. ---
**Author:** ![asahi](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asahi/32/8693_2.png) [@asahi](https://boards.straightdope.com/u/asahi)\ **Post date:** [September 28, 2018, 2:15am UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/4563 "2018-09-28T02:15:41Z")
> [@LoneRhino](#): > > I get why Trump wants Justice “Presidents are immune from prosecution” but I don’t understand why Republican senators are defending this guy. It’s not like the choice is Kavanaugh or a liberal justice. All they have to do is ask the Federalist Society who’s next on the list and confirm. > > Also, if I understand correctly, if one R on the committee votes against then that’s it. It seems to me that the most likely are Jeff Flake or Ben Sasse. Neither guy particularly likes Trump so it’s possible but probably unlikely. You don’t understand how this works. The Republicans who are still running for office or otherwise still competing for positions in the party are bankrolled by a handful of powerful interests, with a peculiar nexus between oligarchy, kleptocracy, and religion. Flake and Corker aren’t really independent; they’re thinking of their financial and political afterlife, which probably means maintaining access to the corridors of power after their political careers officially come to an end. They might not like bein shown the door by the Trump cult, but they know that if they want fat lobbying income, then that’s the game they gotta play. Kavanaugh’s on the bench. Deal with it. ---
**Author:** ![Omar\_Little](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/omar_little/32/269_2.png) [@Omar\_Little](https://boards.straightdope.com/u/Omar_Little)\ **Post date:** [September 28, 2018, 2:16am UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/4564 "2018-09-28T02:16:20Z")
> [@Whack-a-Mole](#): > > Since when can one branch of government legislate to limit the power of another branch of government? > > Seems to me you need a constitutional amendment for that. > > It would be akin to the judicial branch limiting the size of the legislative branch. > > Separate but EQUAL and all that jazz. > > If you disagree consider: > > Can congress legislate that the Supreme Court consist of only one person? You need to do some research before just spouting off. The Constitution establishes SCOTUS, but the number of justices is determined by congressional act. ---
**Author:** ![Fiveyearlurker](https://avatars.discourse-cdn.com/v4/letter/f/da6949/32.png) [@Fiveyearlurker](https://boards.straightdope.com/u/Fiveyearlurker)\ **Post date:** [September 28, 2018, 2:17am UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/4565 "2018-09-28T02:17:05Z")
> [@Bijou\_Drains](#): > > I believe they never planned for the woman from Arizona to also question Brett but I could be wrong. She did at least one round on Kavanaugh. Maybe more. Can’t recall. ---
**Author:** ![Sam\_Stone](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Sam\_Stone](https://boards.straightdope.com/u/Sam_Stone)\ **Post date:** [September 28, 2018, 2:17am UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/4566 "2018-09-28T02:17:58Z")
Any attempt to pack the court, either by Republicans or Democrats, will result in popular fury. Partisanship is already spiralling out of control. Do you really want to fan that fire? If Trump decided that the court needed 12 justices and proceeded to pick three new, highly conservative justices, or President Booker decided to do it with liberal justices, I think the result would be violence in the streets. It would be perceived as a de-facto coup. A Supreme court packed with partisans could essentially give the ruling party free reign to do whatever they wanted. There are umbras and emanations galore that can be used to hand-wave away all sorts of constitutional protections if the SC really wanted to do it. ---
**Author:** ![asahi](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asahi/32/8693_2.png) [@asahi](https://boards.straightdope.com/u/asahi)\ **Post date:** [September 28, 2018, 2:21am UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/4567 "2018-09-28T02:21:04Z")
> [@Sam\_Stone](#): > > Any attempt to pack the court, either by Republicans or Democrats, will result in popular fury. > > Partisanship is already spiralling out of control. Do you really want to fan that fire? > > If Trump decided that the court needed 12 justices and proceeded to pick three new, highly conservative justices, or President Booker decided to do it with liberal justices, I think the result would be violence in the streets. It would be perceived as a de-facto coup. A Supreme court packed with partisans could essentially give the ruling party free reign to do whatever they wanted. There are umbras and emanations galore that can be used to hand-wave away all sorts of constitutional protections if the SC really wanted to do it. When the financial collapse happens, there will be no more partisanship; we will have one side dominating politics and that will be the reckoning. And we will have to insist on justice - nothing less. This country is screwed; it just doesn’t know it yet. But most of the people writing now, especially those under 50, will see their life savings mostly wiped out. Once that happens, there will be a new reality. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [September 28, 2018, 2:22am UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/4568 "2018-09-28T02:22:35Z")
> [@Sam\_Stone](#): > > If Trump decided that the court needed 12 justices and proceeded to pick three new, highly conservative justices, or President Booker decided to do it with liberal justices, I think the result would be violence in the streets. It would be perceived as a de-facto coup. A Supreme court packed with partisans could essentially give the ruling party free reign to do whatever they wanted. There are umbras and emanations galore that can be used to hand-wave away all sorts of constitutional protections if the SC really wanted to do it. This country is heading towards a Constitutional crisis one way or the other. It’s inevitable with as anti-democratic the GOP has become. I’d rather it be liberals with the power of law behind them when that crisis comes rather than the Nazis; how about you? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [September 28, 2018, 2:22am UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/4569 "2018-09-28T02:22:53Z")
> [@Smapti](#): > > Article III, Section 3; “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior.” That does not grant congress the right to determine the size of the supreme court. As it happens congress set it at nine and no one has challenged it but I still see nowhere in the constitution where the notion of “separate but equal” for the three branches of government, which was the central theme in its creation, is neutered by letting one branch gut another branch as you suggest here. The check and balance for the judiciary is in the senate’s power to confirm or impeach. Congress drawing arbitrary lines is not in the constitution for the Supreme Court. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [September 28, 2018, 2:26am UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/4570 "2018-09-28T02:26:40Z")
> [@Whack-a-Mole](#): > > That does not grant congress the right to determine the size of the supreme court. You’re right. _That_ part comes from Article I, Section 8; > [@US Constitution](#): > > The Congress shall have power… To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. > [@](#): > > As it happens congress set it at nine and no one has challenged it but I still see nowhere in the constitution where the notion of “separate but equal” for the three branches of government, which was the central theme in its creation, is neutered by letting one branch gut another branch as you suggest here. > > The check and balance for the judiciary is in the senate’s power to confirm or impeach. Neither the phrase “separate but equal” or “check and balance” can be found in the Constitution. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [September 28, 2018, 2:30am UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/4571 "2018-09-28T02:30:14Z")
> [@Smapti](#): > > You’re right. _That_ part comes from Article I, Section 8 By your reckoning then that give congress uber god powers. You are right that “separate but equal” and “check and balance” is not in the constitution but we know that was the FFs’ goal. Do you think your reading granting congress ultimate power is in line with that notion and what the FFs intended? ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [September 28, 2018, 2:35am UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/4572 "2018-09-28T02:35:16Z")
> [@Whack-a-Mole](#): > > By your reckoning then that give congress uber god powers. The necessary-and-proper clause, along with the interstate commerce clause, form the lion’s share of the justification for almost _everything_ Congress does, but no, it doesn’t make it all-powerful. The Founders put it there for the _specific_ purpose of making sure that Congress wasn’t limited by the fact that an essential function for stable government hadn’t been specifically enumerated in the Constitution, much like the Ninth and Tenth Amendments do for the states and the people. Congress has the power to set the size of the Supreme Court because maintaining a stable and functional judiciary is necessary and proper to execute most of their enumerated powers. Your stubborn insistence that Congress doesn’t have the power to do what it’s been doing the entire time this Constitution has been in effect is lacking in any Constitutional merit. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [September 28, 2018, 2:38am UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/4573 "2018-09-28T02:38:52Z")
> [@Smapti](#): > > Congress has the power to set the size of the Supreme Court because maintaining a stable and functional judiciary is necessary and proper to execute most of their enumerated powers. No, they don’t because the constitution does not say so. They can setup inferior courts but they cannot nerf another branch of government because that would be a _ **STUPID** _ thing to do if you were a founding father trying to create a government of checks and balances. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [September 28, 2018, 2:39am UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/4574 "2018-09-28T02:39:43Z")
> [@Whack-a-Mole](#): > > No, they don’t because the constitution does not say so. They can setup inferior courts but they cannot nerf another branch of government because that would be a _ **STUPID** _ thing to do if you were a founding father trying to create a government of checks and balances. Who do you think, under the Constitution, is _supposed_ to set the number of justices on the Court? ---
**Author:** ![asahi](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asahi/32/8693_2.png) [@asahi](https://boards.straightdope.com/u/asahi)\ **Post date:** [September 28, 2018, 2:40am UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/4575 "2018-09-28T02:40:00Z")
Over time, the current slave-era Constitution will become extinct, because it needs to. It was good for its time, but current generations will have to remake America in the image of a country that actually embraces the values of democracy and equality for all people, not just a hypocritical group of wealthy white men. Today’s shit show was symptomatic - one of many symptoms - that American democracy is withering on the vine, a sick and diseased relic from the past. We cling to the hope that we can return to our normal of Kennedy vs Nixon and Mondale vs Reagan, and center left Democrats versus center right Republicans. But those days are gone. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [September 28, 2018, 2:44am UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/4576 "2018-09-28T02:44:13Z")
> [@Smapti](#): > > Who do you think, under the Constitution, is _supposed_ to set the number of justices on the Court? It is not set by the constitution. Tradition could keep it at nine. The senate is the check and balance against stacking the court. They can refuse to confirm and they can impeach. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [September 28, 2018, 2:55am UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/4577 "2018-09-28T02:55:27Z")
> [@Whack-a-Mole](#): > > It is not set by the constitution. Tradition could keep it at nine. Except there is no “tradition” of it being nine. It started at six. It went to five at one point. It’s been as large as ten. The only thing that keeps it set at nine is _an act of Congress that no one has challenged their authority to pass since 1789_ - at which time the people who wrote the Constitution could have, say, _not passed that law_ if they didn’t intend for the Congress they created and were now sitting in to not have that power. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [September 28, 2018, 2:56am UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/4578 "2018-09-28T02:56:44Z")
> [@Fiveyearlurker](#): > > Still waiting for your alternative explanations. I already responded to this in #4355 ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [September 28, 2018, 2:59am UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/4579 "2018-09-28T02:59:35Z")
> [@Smapti](#): > > Except there is no “tradition” of it being nine. It started at six. It went to five at one point. It’s been as large as ten. The only thing that keeps it set at nine is _an act of Congress that no one has challenged their authority to pass since 1789_ - at which time the people who wrote the Constitution could have, say, _not passed that law_ if they didn’t intend for the Congress they created and were now sitting in to not have that power. Exactly. It is whatever the senate is ok with. Not what congress has set it as. Because it has not been challenged only means no one has felt like challenging it for any number of reasons. What if the senate, tomorrow, considered the nomination of a 10th justice. What do you think would happen? ---
**Author:** ![Rick\_Kitchen](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rick_kitchen/32/522_2.png) [@Rick\_Kitchen](https://boards.straightdope.com/u/Rick_Kitchen)\ **Post date:** [September 28, 2018, 3:01am UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/4580 "2018-09-28T03:01:01Z")
> [@Bijou\_Drains](#): > > That left wing rag the Wall St. Journal wrote that he lied when he said he did not watch her testimony. > > [https://www.wsj.com/livecoverage/kavanaugh/card/1538060501](https://www.wsj.com/livecoverage/kavanaugh/card/1538060501) And ABC News said he was watching it from his home in Chevy Chase before getting into his car and driving to the Capitol. [Previous page](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733.md?page=228) [Next page](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733.md?page=230)