# Democratic strategy regarding Supreme Court justices **URL:** \ **Category:** Great Debates\ **Created:** [November 28, 2016, 5:25pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297 "2016-11-28T17:25:24Z")\ **Posts on this page:** 20\ **Page:** 10
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [November 30, 2016, 8:44pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/181 "2016-11-30T20:44:33Z")
> [@Fotheringay-Phipps](#): > > Under a talking filibuster, the majority needs to keep a quorum of members in the chamber at all times, or the bill fails. So the filibustering group can tag team with a few speakers taking turns while almost all the majority party needs to stay in session. But requiring a talking filibuster makes it possible that it will fail. It’s not guaranteed. Right now, it’s a guaranteed success. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [November 30, 2016, 8:45pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/182 "2016-11-30T20:45:14Z")
> [@jshore](#): > > But, to put it more seriously, what I would say is that occasionally Roberts and more rarely Scalia will at least carry their judicial philosophies to a point that gives them a ruling that the conservative Republicans might find distasteful in its outcome. I see no evidence of Bork ever doing that. What evidence have you looked at? ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [November 30, 2016, 8:46pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/183 "2016-11-30T20:46:29Z")
> [@jshore](#): > > Well, you might feel that way, but **Bricker** said: > > That statement didn’t exactly seem to me to resemble a thousand blooming flowers. Bricker and I disagree about that as well. And that’s fine too … 🙂 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 30, 2016, 8:50pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/184 "2016-11-30T20:50:10Z")
> [@Budget\_Player\_Cadet](#): > > Question. > > If someone is a qualified, intelligent, constitution-minded person, is there _any_ opinion that person holds, legal or otherwise, that could convince you that maybe the senate would be okay voting against that person? Like, say, maybe they believe African-Americans are subhuman. Would you consider the senate unreasonable for saying, “We don’t want this person as a member of the supreme court, we will not consent to him”? Would you consider that equally “precedent-setting”? I’d consider that reason to reject, sure. But that rejection would be based on his judicial philosophy, laid bare by that statement. He demonstrates his inability to apply the guarantees of the Constitution to “all people,” by carving out some people as being not fully human. > [@](#): > > If you think that the rejection of a moderate with bipartisan support with the explicit, stated goal of preventing a president from making _any_ nomination whatsoever is a “return of the serve” of blocking Robert “Poll Tax was no big deal” Bork, then I pray that I am never unfortunate enough to fall under your legal counsel. Here once again you return to your beliefs like they were they the Noble Truths and you were Siddhārtha Gautama. You want Bork, and all judges, to say in essence, “Hey, this is such a bad outcome, so don’t you worry: I’ll find a constitutional reason to prevent it.” Bork’s position was simple: if there was a national consensus to end the poll tax, it could not be through Congressional statute or through judicial fiat. A constitutional amendment was necessary, or in the alternative each state should act individually. And ultimately, lo and behold, yea and verily, the Congress passed by super-majority the language that became the 24th Amendment when ratified by three-fourths of the states, forbidding poll taxes. That’s the way we should legislate change in a democratic republic. You shiver in your stylish capri-style beachwear at the very thought of anyone, for any reason, doing anything that might be construed as support for the poll tax. But you need to learn to separate the question of policy from the question of method: it is perfectly possible to believe that the constitution permits (pre-Amendment XXIV) a poll tax without being an evil madman. So, in conclusion, learn to live with it. Your continued effort to cast your invidious rejections as arising from pure and decent hearts while mine arise from wizened and blackened souls simply doesn’t work. You can keep trying, if you like, but you will be speaking to a deaf ear attached to a man whose only bright spot associated with the Trump win is the hope he keeps his promise about judicial appointments. Of course, it’s Trump, so who knows? ---
**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:** [November 30, 2016, 8:51pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/185 "2016-11-30T20:51:28Z")
> [@jshore](#): > > …Oh yeah, and I might add that it seemed to be accompanied by a complete lack of empathy of how the law might impact real people, especially people who were different from him. That sounds like exactly what I would want in a SCOTUS justice. Fiat justitia ruat cælum - empathy should be irrelevant in interpreting the law. If the law would produce an undesirable result then the law should be changed - by the legislature. The courts should have no role in that. ---
**Author:** ![jshore](https://avatars.discourse-cdn.com/v4/letter/j/b5e925/32.png) [@jshore](https://boards.straightdope.com/u/jshore)\ **Post date:** [November 30, 2016, 8:54pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/186 "2016-11-30T20:54:03Z")
> [@HurricaneDitka](#): > > Gotcha. I haven’t studied many of Bork’s opinions, so I can’t say where he fell on that spectrum. Is there one of the four liberal justices that you think of as being more like Roberts (carrying their judicial philosophy to a point that gives them a ruling they find distasteful) than the others? I can’t say I have entirely kept up with the Court in general and those folks in particular enough to know. But, one thing that comes to mind is that 2 of the Court’s more liberal members (Breyer and Souter) agreed with part of the Bush v Gore ruling that the statewide recount as proposed violated the Equal Protection clause. Another example, from longer ago, was that on the flag burning case, Stevens, a liberal justice, was actually on the opposite side as Scalia and the more liberal members of the Court, i.e., on the side that one could make laws limiting such an exercise of free speech. I can’t say how these examples fit into the judge’s larger judicial philosophy, but they are examples of liberal justices voting for outcomes that favor conservative policies or politicians. ---
**Author:** ![jshore](https://avatars.discourse-cdn.com/v4/letter/j/b5e925/32.png) [@jshore](https://boards.straightdope.com/u/jshore)\ **Post date:** [November 30, 2016, 8:57pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/187 "2016-11-30T20:57:20Z")
> [@Bone](#): > > That sounds like exactly what I would want in a SCOTUS justice. Fiat justitia ruat cælum - empathy should be irrelevant in interpreting the law. If the law would produce an undesirable result then the law should be changed - by the legislature. The courts should have no role in that. I think that people who claim that they can interpret the law without bias or ideology are the most dangerous of all because what it usually reveals a severe lack of self-awareness. I would rather the biases / ideology be more explicit and more in favor of humanity. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [November 30, 2016, 9:00pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/188 "2016-11-30T21:00:16Z")
I think people with your attitude are the most dangerous, because once you explicitly allow for bias/ideology then there’s no limit to what the law “says” other than what the judge wants it to say. Whereas if you at least try to eliminate it, you have some hope. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [November 30, 2016, 9:15pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/189 "2016-11-30T21:15:57Z")
> [@iiandyiiii](#): > > I still don’t see how not holding hearings or considering a nominee is the same as holding hearings and considering but rejecting a nominee. They are the same in that in both cases, the nominee doesn’t get to sit on the Court. They are different in the way that the Senate withholds its consent to the nominee. > [@jshore](#): > > I never heard Bork have any coherent philosophy other than the Republican combination of libertarianism on economy and authoritarianism on personal libertaries taken to the Nth degree. > > The guy was fucking scary. If he was so obviously scary, why was he unanimously approved as a federal appeals court judge? Wasn’t he just as monstrous then? Regards, Shodan ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [November 30, 2016, 9:34pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/190 "2016-11-30T21:34:49Z")
> [@Bricker](#): > > It’s not, though. > > If you believe Garland was shown more discourtesy than Bork, then you merely continue to confirm that your name will not appear on a list of people whose judgement I trust on the matter of courtesy. And I’m casually prepared to take that chance and give it the level of concern I feel it deserves. It changes nothing, though. Bork got a hearing (and was found unacceptable) and Garland was refused a hearing (despite all indications that under different circumstances, he’d have been perfectly acceptable). Further, the justification to refuse giving him a hearing - that it was an election year - was itself a flimsy rationalization. Not only were Senate Republicans being discourteous to Garland, they were lying to the American people. If you want to personally conclude that my understanding of “courtesy” lacks authority, be my guest. > [@](#): > > The Democrats chose to reject a qualified nominee, and now are shocked that the Republicans are doing that to them. My view is that both sides should stop, and I’d take Justice Garland and a guarantee that Democrats will henceforth confirm on qualifications and not political litmus tests. > > But who would enforce such a promise? I assume \*you \*would, once you declare yourself King of America and start ruling by fiat, letting you overrule the Senate on who is or is not an acceptable SCOTUS nominee. But more seriously, I don’t see a problem with a theoretical constitutional amendment clarifying the nomination process in which a presidential nomination for SCOTUS has a fixed time period, i.e. ninety days, in which if the Senate does not formally reject the nominee, the appointment automatically passes. The exact mechanics can be worked out, of course, the gist being that appointments cannot be indefinitely delayed as Senate Republicans have done to Obama and said they would do to Clinton. Or just do nothing about it - the American voters didn’t seem to think this was important enough to vote the Republican Class 3 Senators out, and if the Class 1 Senate Republicans get returned in 2018, then a fair conclusion is that the American Federal government is broken and the American public either likes it that way or doesn’t care enough to fix it. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [November 30, 2016, 9:53pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/191 "2016-11-30T21:53:53Z")
> [@Bryan\_Ekers](#): > > But more seriously, I don’t see a problem with a theoretical constitutional amendment clarifying the nomination process in which a presidential nomination for SCOTUS has a fixed time period, i.e. ninety days, in which if the Senate does not formally reject the nominee, the appointment automatically passes. You’d have to eliminate the filibuster, for obvious reasons. Regards, Shodan ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [November 30, 2016, 9:54pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/192 "2016-11-30T21:54:19Z")
> [@Bryan\_Ekers](#): > > the American public … doesn’t care enough to fix it. I suspect this is the case. Things that seem to Dopers like a really big deal (like the Republicans not holding a hearing on Garland or the Democrats nuking the filibuster), are, for most voters, a bit of inside baseball. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [November 30, 2016, 9:56pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/193 "2016-11-30T21:56:52Z")
> [@Shodan](#): > > You’d have to eliminate the filibuster, for obvious reasons. I kind of baffled that’s even a thing, truth be told, or at least the painless version of it that now exists where a member isn’t obliged to keep talking for hours on end but can just call “filibuster!” and go back to reading the sports page or whatever. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [November 30, 2016, 10:05pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/194 "2016-11-30T22:05:09Z")
> [@Bricker](#): > > And when the Democrats rejected Bork, why was that also not turning the process on its head? > > Because Bork was bad? But Democrat nominees are good? Yes. He was toxic. Democrats have confirmed countless Republican nominees including all the ones on the court right now. Bork was especially controversial. He fired the special prosecutor (Cox that was heading up the Watergate investigation under orders from Nixon. He knew (or should have known) that this was not legal, the two guys that resigned rather than fire Cox knew it was illegal and so did Bork. But Bork did it anyway (perhaps because Nixon promised him the next seat on the Supreme Court). Bork criticized civil rights legislation that required restaurants and motels to serve non-whites, calling it ugly and unprincipled. Perhaps there were better bases for upholding those laws (e.g. 14th amendment) but Bork wasn’t just criticizing the analytical path that was taken to reach the conclusion. He was criticizing the conclusion itself. He called it a violation of the business owner’s freedom of association. He was cool with business owners closing their doors to people on the basis of race or anything else. Most importantly, he was vocal about his desire to overturn Roe v Wade. A mistake that no one has made since. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [November 30, 2016, 10:06pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/195 "2016-11-30T22:06:55Z")
> [@HurricaneDitka](#): > > I suspect this is the case. Things that seem to Dopers like a really big deal (like the Republicans not holding a hearing on Garland or the Democrats nuking the filibuster), are, for most voters, a bit of inside baseball. Sure, though that’s not an aspect specific to this board. Here, politics gets discussed a lot while a message board dedicated to, say, Star Wars (or, for that matter, baseball) will also engage in minute analyses of topics that the general public views with limited interest. ---
**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:** [December 1, 2016, 12:26am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/196 "2016-12-01T00:26:20Z")
> [@HurricaneDitka](#): > > Huh? I thought the Democrats were the ones that set the cloture rule at 60 votes. ETA: I guess I’m asking for a cite here. The [cloture rule](http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm) ([Senate Rule 22](http://www.senate.gov/reference/reference_index_subjects/Cloture_vrd.htm)) originated in 1917 with a requirement of two thirds vote to invoke cloture and end debate. There were 96 Senate seats at the time with 54 Democrats, 41 Republicans and 1 vacancy at the start of the Senate term. There were several changes throughout the 2 years of the 65th Congress, but the Democrats held the majority the entire two year period. Republicans won control of the Senate in the 1918 elections. In 1975 the Senate amended the cloture rule to the current 60 vote requirement. There were 100 Senators by then with 60 Democrats, 1 Independent (who caucused with the Democrats), 37 Republicans, 1 Conservative (who caucused with the Republicans), and 1 vacancy. Democrats held a 60 vote supermajority throughout the 94th Congress. The requirement for a talking filibuster was changed at the same time. TLDR; Yes. The Democrats held the majority both when the cloture rule was first implemented and when it was amended to the 60 vote requirement. ---
**Author:** ![Fiveyearlurker](https://avatars.discourse-cdn.com/v4/letter/f/da6949/32.png) [@Fiveyearlurker](https://boards.straightdope.com/u/Fiveyearlurker)\ **Post date:** [December 1, 2016, 12:33am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/197 "2016-12-01T00:33:29Z")
Bork was given a hearing, and rejected as a result (including some Republicans, by the way). His replacement, Kennedy, was approved unanimously. In other words, Bork was rejected because of who he was, not who nominated him. Garland was rejected before his name was even announced. Subsequently, many Republicans announced plans to block all Democratic nominees in the future as well. In other words, Garland was rejected not because of who he was, but because of who nominated him. The comparison between the two is not just disingenuous, but so disingenuous that it’s difficult to take remotely seriously. I don’t find it at all hypocritical to say that Democrats should do anything to block all Republican nominees, despite finding what happened to Garland grotesque. If Republicans block all Democratic nominees, and Democrats don’t follow suit, the obvious eventual outcome is a completely Republican Supreme Court. If Democrats matching obstruction is met by removing the filibuster, then fine. Let the Republicans be the ones to do it so they won’t be able to complain in the future when their petards are hoisted. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [December 1, 2016, 12:42am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/198 "2016-12-01T00:42:05Z")
> [@Fiveyearlurker](#): > > If Democrats matching obstruction is met by removing the filibuster, then fine. Let the Republicans be the ones to do it so they won’t be able to complain in the future when their petards are hoisted. OK. I find this outcome acceptable too. ---
**Author:** ![Fiveyearlurker](https://avatars.discourse-cdn.com/v4/letter/f/da6949/32.png) [@Fiveyearlurker](https://boards.straightdope.com/u/Fiveyearlurker)\ **Post date:** [December 1, 2016, 12:51am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/199 "2016-12-01T00:51:40Z")
> [@HurricaneDitka](#): > > OK. I find this outcome acceptable too. See, this is why we can’t have nice things. ---
**Author:** ![jshore](https://avatars.discourse-cdn.com/v4/letter/j/b5e925/32.png) [@jshore](https://boards.straightdope.com/u/jshore)\ **Post date:** [December 1, 2016, 1:20am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/200 "2016-12-01T01:20:18Z")
> [@Fotheringay-Phipps](#): > > I think people with your attitude are the most dangerous, because once you explicitly allow for bias/ideology then there’s no limit to what the law “says” other than what the judge wants it to say. Whereas if you at least try to eliminate it, you have some hope. Most of them are not trying to eliminate it…They are denying they have it, which in fact gives them an excuse not even to try to eliminate it because they don’t have to. [Previous page](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297.md?page=9) [Next page](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297.md?page=11)