# 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:** 27
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [September 11, 2018, 4:00pm UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/521 "2018-09-11T16:00:48Z")
> [@RTFirefly](#): > > No offense against the letter of the Constitution perhaps. But I have a hard time believing the Founders intended the Senate to respond to a nomination to our highest court by refusing to even consider it, unless perhaps the nominee was so flagrantly unqualified and unworthy as to be beneath the Senate’s notice. Then don’t you need some statement from one or more of the Founding Fathers that states that the Senate should at least hold hearings, or that defines in some way how the process of “advise and consent” should be done? If that was their intent, and they didn’t mention it in the Constitution, then one would expect that they mentioned it somewhere else. I am not aware that they did, although I am open to correction on the subject. Regards, Shodan ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [September 11, 2018, 4:00pm UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/522 "2018-09-11T16:00:49Z")
Well, there’s the ABA, which **John** is swinging about like the #10 Magic Hammer of Thor. Which raises as many questions as it answers. For instance, was the ABA asked for an opinion in the same way as the Heritage Foundation and the Federalists, were they offered the opportunity to suggest nominations? Not to my knowledge. But if they had? Would the Kav’s name appear at the very tip-top of such a list? Would he have even made the top fifty? Would their hearts swell with pride at his Javertbot pursuit of HRC’s role in the death of Vince Foster? Ken Starr is a name that shines in the annals of strictly unbiased pursuit of Justice? (I mean “pursuit” in the sense of accomplishing an ideal goal, not “pursuit” in the sense of chasing down Lady Justice and beating the living snot out of her…) His work on behalf of a stringent “pro-life” advocate? As he conducts a festival of weasel-speak to convince nervous Republican women that, no, of course he hasn’t made up his mind! Oh, no doubt he has thought about the question, in odd spare moments when he isn’t actively adoring The Leader. But no, of course he hasn’t made up his mind, perish the thought! Or he had his mind made up _then_, but has recanted to a position of utterly fair and unbiased opinion. Or better still, he was functioning as an _advocate_, who’s sense of honor and fair play demanded that he ignore his personal views? Or _would_ that be “better”? His obligation to the Republican Party gives him a pass? Its totally ethical for him to behave this way, they are his clients, they write the checks! Given all this, I turn to **John Mace** , our resident avatar of non-partisan centrism. In your opinion, had the ABA been consulted in the same way that the Heritage Foundation and the Federalists were consulted, would his name be in the Top Ten? The Sweet Sixteen? The Sorta Kinda Fifty? Since the time, loathe, those many years ago, when so many had their reservations… has his reputation soared due to his brilliant opinions and interpretations? Ya think, maybe? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [September 11, 2018, 4:03pm UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/523 "2018-09-11T16:03:09Z")
> [@ElvisL1ves](#): > > Then, by that definition, an anti-abortion zealot is unqualified. If, as you say, an anti-abortion zealot would not be listed as qualified, and since they did list Judge Kavanaugh as “well qualified”, then he must not be an anti-abortion zealot. QED. Regards, Shodan ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [September 11, 2018, 4:06pm UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/524 "2018-09-11T16:06:35Z")
Recently, but not always. You wouldn’t prefer a candidate who’s _always_ been viewed as “very qualified”? Would that have been someone like…oh, I don’t know, Merrick Garland?..just to grab a name. (Actually, I don’t know that, maybe he wasn’t.) ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [September 11, 2018, 4:14pm UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/525 "2018-09-11T16:14:39Z")
> [@Shodan](#): > > Then don’t you need some statement from one or more of the Founding Fathers that states that the Senate should at least hold hearings, or that defines in some way how the process of “advise and consent” should be done? > > If that was their intent, and they didn’t mention it in the Constitution, then one would expect that they mentioned it somewhere else. I am not aware that they did, although I am open to correction on the subject. As Thomas Jefferson put it, “a decent respect to the opinions of mankind requires that they should declare the causes which impel them.” I’ll let you tell me why he wasn’t stating a broad principle, but rather one that only applied to a declaration of independence. ---
**Author:** ![John\_Stamos\_Left\_Ear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_stamos_left_ear/32/3198_2.png) [@John\_Stamos\_Left\_Ear](https://boards.straightdope.com/u/John_Stamos_Left_Ear)\ **Post date:** [September 11, 2018, 4:20pm UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/526 "2018-09-11T16:20:00Z")
> [@John\_Mace](#): > > How about we use the definition that the ABA uses when [rating judicial candidates.](https://www.americanbar.org/content/dam/aba/uncategorized/GAO/Web%20rating%20Chart%20Trump%20115.authcheckdam.pdf) Oh, so you consider them an authority on these matters? Then I assume you would take their position with regard to Garland’s nomination and judicial nominations in general as valid as well? > [@](#): > > The president and the Senate have a constitutional responsibility to nominate and confirm judges to the Article III courts. Despite the political nature of the process, this shared duty needs to be carried out with bipartisan cooperation out of respect for the role of the judiciary in our government and our daily lives. > > On March 16, 2016, President Obama nominated Merrick Garland, Chief Judge of the U.S. Court of Appeals for the District of Columbia, to be Associate Justice of the U.S. Supreme Court. Even though there was widespread respect for Judge Garland among Democrats and Republicans alike, Majority Leader McConnell refused to take any action on the nominee, explaining in a short statement that “[t]he American people‎ should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.” Rather than relenting, Republican organizations prepared a list of potential Supreme Court nominees that Donald Trump endorsed and released in September 2016 while on the campaign trail. > > The Administration and the Senate must make the prompt filing of federal judicial vacancies an ongoing priority. The political branches should resolve to work cooperatively and across the political aisle to make lasting progress in filling vacancies in a timely fashion. > > [ABA](https://www.americanbar.org/advocacy/governmental_legislative_work/priorities_policy/independence_of_the_judiciary/judicial_vacancies.html) They also happened to [rate him as “well-qualified.”](https://abaforlawstudents.com/2016/06/21/aba-rates-merrick-garland-well-qualified/) ---
**Author:** ![John\_Stamos\_Left\_Ear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_stamos_left_ear/32/3198_2.png) [@John\_Stamos\_Left\_Ear](https://boards.straightdope.com/u/John_Stamos_Left_Ear)\ **Post date:** [September 11, 2018, 4:21pm UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/527 "2018-09-11T16:21:56Z")
> [@elucidator](#): > > Recently, but not always. You wouldn’t prefer a candidate who’s _always_ been viewed as “very qualified”? Would that have been someone like…oh, I don’t know, Merrick Garland?..just to grab a name. > > (Actually, I don’t know that, maybe he wasn’t.) No, he was (see my post above). ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [September 11, 2018, 4:27pm UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/528 "2018-09-11T16:27:35Z")
> [@John\_Stamos\_Left\_Ear](#): > > Oh, so you consider them an authority on these matters? Then I assume you would take their position with regard to Garland’s nomination and judicial nominations in general as valid as well?They also happened to [rate him as “well-qualified.”](https://abaforlawstudents.com/2016/06/21/aba-rates-merrick-garland-well-qualified/) I don’t think **John Mace** (or anyone else) disputes that Garland would have been well-qualified for the job. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [September 11, 2018, 4:32pm UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/529 "2018-09-11T16:32:24Z")
> [@Shodan](#): > > If that was their intent, and they didn’t mention it in the Constitution, then one would expect that they mentioned it somewhere else. I am not aware that they did, although I am open to correction on the subject. While most of us don’t browse the Federalist Papers as light bedtime reading, Google is our friend, and [Federalist No. 76](http://avalon.law.yale.edu/18th_century/fed76.asp) has a few things to say about the Constitutional provision that > [@](#): > > THE President is "to NOMINATE, and, by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for in the Constitution. If we read down a ways, we come across this passage: > [@](#): > > But might not [the President’s] nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. Clearly the Senate violated this notion by refusing to consider any nomination whatsoever from Obama. And further: > [@](#): > > To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. The Senate here abandoned that purpose. And: > [@](#): > > It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entier branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. Underlining mine, obviously. Yeah, I’d say that ‘Publius’ (believed to be Alexander Hamilton for #76) very much anticipated that the Senate would have a ‘discussion and determination’ of Presidential nominations. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [September 11, 2018, 4:33pm UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/530 "2018-09-11T16:33:00Z")
> [@](#): > > I don’t think John Mace (or anyone else) disputes that Garland would have been well-qualified for the job. You evade the point. Garland has been consistently approved to that level, the Kav, not so much. So, which is better? Take your time, think it over, we’ll wait. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 11, 2018, 4:35pm UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/531 "2018-09-11T16:35:27Z")
> [@RTFirefly](#): > > No offense against the letter of the Constitution perhaps. But I have a hard time believing the Founders intended the Senate to respond to a nomination to our highest court by refusing to even consider it, unless perhaps the nominee was so flagrantly unqualified and unworthy as to be beneath the Senate’s notice. Reuben Hyde Walworth, nominated by President John Tyler in 1844. Never considered. Why was the Senate in 1844 permitted to do this? John Jordan Crittenden. Nominated by John Quincy Adams on December 17, 1828, after Adams has already lost the election to Andrew Jackson. The Senate refused to confirm him, instead waiting to allow President-Elect Andrew Jackson to nominate his own choice. Why was the Senate allowed to do this? Why does the Senate of 2016 have to conduct a vote when the Senate of 1844 did not? When did the rule that the Senate has to vote come into being? After 1844? What date? ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [September 11, 2018, 4:36pm UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/532 "2018-09-11T16:36:08Z")
> [@elucidator](#): > > You evade the point. Garland has been consistently approved to that level, the Kav, not so much. So, which is better? Take your time, think it over, we’ll wait. I obviously prefer “the Kav” be on the court. The small differences in their “well-qualified” ABA rating aren’t particularly important to me. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [September 11, 2018, 4:36pm UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/533 "2018-09-11T16:36:29Z")
> [@iiandyiiii](#): > > Of course there is political theater involved, as there is with pretty much every political exercise. But political theater can still reveal useful information. If the hearings are going to occur, Senators might as well make use of them, both for political purposes and to try and find useful info from the nominee. From what I can tell your mind was made up as well (and do you really think the minds of most of the Republicans weren’t also made up? If they were, then there’s no reason to single out Booker and Harris, unless it’s just their unusual honesty that bothers you). Kavanaugh wouldn’t be my first choice, nor my second. He’s serviceable. But yes, as I said before I’d be fine with dispensing with the hearing process altogether. There’s a [recent episode of First Mondays](http://www.firstmondays.fm/episodes/2018/9/10/good-behaviour-10-bad-bens) (SCOTUS podcast sponsored by SCOTUSBlog) that discusses this. They are pretty solidly on the left (for example they have been pushing the idea of packing the court), but they have a similar take. There is no useful information to get from nominees anymore. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [September 11, 2018, 4:47pm UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/534 "2018-09-11T16:47:22Z")
> [@Bone](#): > > … He’s serviceable… Thunder and lightning from on high! Like when the dove perched upon Jesus and a voice was heard “This is my Son. i guess. Anyway, he’ll do…” ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [September 11, 2018, 4:52pm UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/535 "2018-09-11T16:52:01Z")
> [@Bone](#): > > There is no useful information to get from nominees anymore. Even if they clam up under questioning, there certainly is useful information to be had if their career documents are all publicly available, as all of Kagan’s and Sotomayor’s were. The fact that the Republicans want most of Kavanaugh’s to remain secret \*should \*tell you something. Does it? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [September 11, 2018, 4:56pm UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/536 "2018-09-11T16:56:01Z")
> [@Bricker](#): > > When did the rule that the Senate has to vote come into being? After 1844? What date? The fact that a rule has been violated before means there \*is \*no rule? That’s quite a remarkable thing for an Officer of the Court to say. You do know you’re citing pre-Civil-War incidents, don’t you? The fact that the Federalist Society you and Kavanaugh admire wants us to return to those days does not make their arguments persuasive. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [September 11, 2018, 4:59pm UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/537 "2018-09-11T16:59:07Z")
The point is that there never was such a rule to violate, and that includes the year 2016. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [September 11, 2018, 5:02pm UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/538 "2018-09-11T17:02:17Z")
And yet it’s been almost universally followed, with those rare exceptions. Could it be that most Senators in history have understood and applied the letter vs. spirit distinction that escapes you? ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [September 11, 2018, 5:17pm UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/539 "2018-09-11T17:17:20Z")
> [@Bricker](#): > > Reuben Hyde Walworth, nominated by President John Tyler in 1844. Never considered. > > Why was the Senate in 1844 permitted to do this? Have I said that the Constitution forbids it? No, I haven’t. I think it’s pretty clear that Alexander Hamilton, at the very least, would have thought that such a scenario shouldn’t have occurred. > [@](#): > > John Jordan Crittenden. Nominated by John Quincy Adams on December 17, 1828, after Adams has already lost the election to Andrew Jackson. The Senate refused to confirm him, instead waiting to allow President-Elect Andrew Jackson to nominate his own choice. > > Why was the Senate allowed to do this? Have I said that the Constitution forbids it? No, I haven’t. > [@](#): > > Why does the Senate of 2016 have to conduct a vote when the Senate of 1844 did not? > > When did the rule that the Senate has to vote come into being? After 1844? What date? Have I said that the Constitution forbids it? No, I haven’t. But thank you for responding to someone else’s argument in great detail. :rolleyes: ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [September 11, 2018, 5:28pm UTC](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733/540 "2018-09-11T17:28:30Z")
> [@RTFirefly](#): > > Clearly the Senate violated this notion by refusing to consider any nomination whatsoever from Obama. What are Sotomayor and Kagan, chopped liver? And I don’t see anything in your cites that defines what the process of “advise and consent” has to look like, which is what I asked. Quotes from the Declaration of Independence are all well and good, but I don’t think McConnell was announcing his intention to secede. Regards, Shodan [Previous page](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733.md?page=26) [Next page](https://boards.straightdope.com/t/can-democrats-actually-stop-the-nomination-of-brett-kavanaugh/820733.md?page=28)