# 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:** 11
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 1, 2016, 1:55am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/201 "2016-12-01T01:55:57Z")
> [@Fotheringay-Phipps](#): > > ISTM fairly obvious that the Republican line about waiting for the next president was concocted for the purpose of opposing Garland. YMMV. > > On another note, ISTM that while various Republicans may have supported Garland at some point or other, there’s a big difference between supporting a guy at lower levels and supporting the same guy at the SC level. And there’s an even bigger difference if the guy is being nominated at a time when he would dramatically change the balance of a closely divided SC. > > IOW, it’s not inconsistent to apply much closer scrutiny to the impact of SC nominations while at the same time allowing that not every single federal judge needs to be in ideological alignment with you. > > In sum, I don’t think the prior “endorsements” of Garland should carry much weight. > [@Bricker](#): > > Sure. But honestly, now, if Obama had nominated Neil Gorsuch or William Pryor, you must know that the Senate would (after pinching themselves to ensure this was not a dream) quickly confirmed them. You cannot possibly be trying to convince me that McConnell, with a Clinton presidency looming, would have literally stuck to the rhetoric he offered up. As a textualist, I think it’s best to judge them by their words, not by the penumbra of their words. Besides, it’s the thesis they have put forward for the reason they are not considering Garland. There is no mention of him being too extreme, only that Obama shouldn’t be able to pick the next SCOTUS justice. That is a substantively different position than shutting down a given nominee. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 1, 2016, 8:34am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/202 "2016-12-01T08:34:09Z")
> [@John\_Mace](#): > > As a textualist, I think it’s best to judge them by their words, not by the penumbra of their words. Besides, it’s the thesis they have put forward for the reason they are not considering Garland. There is no mention of him being too extreme, only that Obama shouldn’t be able to pick the next SCOTUS justice. That is a substantively different position than shutting down a given nominee. You misapprehend the textualist approach. It is properly applied to legislation, and not remotely relevant when it comes to political speechifying. Congress speaks through its words, says a textualist, but those words are the ones passed as laws. Indeed, what you’re doing is exactly what textualism abhors: trying to divine the will of Congress by looking to external evidence of Congressional intent. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 1, 2016, 8:36am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/203 "2016-12-01T08:36:45Z")
> [@Fiveyearlurker](#): > > 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. Except that you ignore the point I made above: Obama nominates Pryor and the Senate would fall all over itself confirming. Same nominator, different nominee, different result. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 1, 2016, 8:52am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/204 "2016-12-01T08:52:57Z")
> [@Damuri\_Ajashi](#): > > 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). Absolute error. Bork believed, in my view correctly, that the act was not illegal. The statute that created the Special Prosecutor at the time did so under the executive authority. The Special Prosecutor was a creature of the President and the President had every legal right to fire him. Bork did not resign at the express request of Rucklehaus and Richardson, who had both just resigned rather than follow the order. They realized that Nixon would continue firing until he appointed the mail room supervisor as Acting Attorney General and told him to fire Cox. Both Richardson and Ruckelhaus asked Bork to stay; Bork wanted to resign as well. It’s true that Nixon promised a Supreme Court post to Bork. But he did so after the fact – that is, there was never the quid pro quo that you suggest. And of course Nixon was ultimately in no position to fulfill that promise in any event, and no reason whatsoever to believe that Reagan had any knowledge of, or obligation to, that promise. > [@](#): > > 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. True. The Bork hearings certainly let nominees know that bland platitudes are preferable to truth when testifying for confirmation. Yay Democrats! This thread is almost making me wish I not only voted for Trump but sent a fat check his way. I can only pray he keeps his word or is too lazy to do anything except say, “Hey, find that list we put out,” when the subject of nominations comes up. The left needs to have its collective noses rubbed in the concept of judicial adherence to the text of the law, and soon. Bork’s opinions about private businesses being free to serve who they please is not nearly as relevant as his opinion about how a judge applies the law to the facts. Liberals have enjoyed a long period in which they automatically ask the courts for what they cannot achieve at the ballot box. It’s time for that to start turning back, ironically at the hands of a buffoon who probably can’t spell textualism and thinks originalism is when a TV episode airs the first time. ---
**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:** [December 1, 2016, 10:20am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/205 "2016-12-01T10:20:13Z")
> [@Bricker](#): > > Except that you ignore the point I made above: Obama nominates Pryor and the Senate would fall all over itself confirming. Same nominator, different nominee, different result. Maybe, maybe not. He nominated someone Orrin Hatch specifically identified as a good choice, but that didn’t matter. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 1, 2016, 10:29am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/206 "2016-12-01T10:29:26Z")
> [@iiandyiiii](#): > > Maybe, maybe not. He nominated someone Orrin Hatch specifically identified as a good choice, but that didn’t matter. No, no. Hatch’s comment was clearly in the context of “a good choice that’s realistic for a Democratic president to make.” And again, don’t get me wrong here: if I were a senator, I’d have voted to confirm Garland. Even though I believe the Democrats are at fault for Bork, I more strongly believe that my job as a senator is defined by the Constitution, not the poor behavior of an opposing political party. BUT that does not make other views wrong. It’s certainly rationally defensible to take the position that the remedy for Bork’s treatment is gloves-off, no-holds-barred partisan treatment of nominees. Live by the sword, die by the sword. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 1, 2016, 2:39pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/207 "2016-12-01T14:39:34Z")
> [@Bricker](#): > > You misapprehend the textualist approach. It is properly applied to legislation, and not remotely relevant when it comes to political speechifying. Congress speaks through its words, says a textualist, but those words are the ones passed as laws. Indeed, what you’re doing is exactly what textualism abhors: trying to divine the will of Congress by looking to external evidence of Congressional intent. Sorry if the tongue-in-cheek aspect wasn’t clear. But the fact remains that you are speculating about a hypothetical. If we are to engage in hypotheticals, then a president Clinton would almost certainly nominate justices much “worse” than Garland, from the Republican’s perspective. It was a very risky gamble either way, so it’s hard to know what they would do if things were different. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 1, 2016, 2:43pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/208 "2016-12-01T14:43:38Z")
> [@Bricker](#): > > Liberals have enjoyed a long period in which they automatically ask the courts for what they cannot achieve at the ballot box. It’s time for that to start turning back, ironically at the hands of a buffoon who probably can’t spell textualism and thinks originalism is when a TV episode airs the first time. At least he knows what a strict constructionist is: That’s when a guy builds a casino exactly as the plans call for. ---
**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:** [December 1, 2016, 2:52pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/209 "2016-12-01T14:52:48Z")
> [@John\_Mace](#): > > If we are to engage in hypotheticals, then a president Clinton would almost certainly nominate justices much “worse” than Garland, from the Republican’s perspective. It was a very risky gamble either way, so it’s hard to know what they would do if things were different. That’s true. I myself (and IIRC Bricker as well) posting on this MB at the time of the nomination, said that the Republicans should confirm Garland. But they took a very risky gamble and it paid off against the odds. (At the time it wasn’t as risky as it later became, because no one thought Trump would be the nominee, but it was risky nonetheless.) But the whole point of that was that Garland - a slightly left-of-center justice - was as good as the Republicans could hope to get from Obama. There was zero chance that Obama would nominate anyone even remotely comparable to Scalia. So the Republicans could announce their opposition in advance because they knew they would have something to oppose in any event. (In fact, it’s possible that the only reason Obama nominated someone as moderate as Garland was in response to the known Republican intentions.) > [@John\_Mace](#): > > At least he knows what a strict constructionist is: That’s when a guy builds a casino exactly as the plans call for. And if it’s not exact, then he stiffs the contractor … 🙂 ---
**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:** [December 1, 2016, 3:12pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/210 "2016-12-01T15:12:58Z")
Wow, those Bork-bruises really went deep. If he couldn’t establish a legacy on SCOTUS, I guess that’s the next best thing. ---
**Author:** ![cmkeller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cmkeller/32/118_2.png) [@cmkeller](https://boards.straightdope.com/u/cmkeller)\ **Post date:** [December 1, 2016, 3:35pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/211 "2016-12-01T15:35:57Z")
> [@Bricker](#): > > True. The Bork hearings certainly let nominees know that bland platitudes are preferable to truth when testifying for confirmation. Yay Democrats! [Relevant cartoon strip](http://dilbert.com/strip/1991-11-27) ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [December 1, 2016, 6:12pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/212 "2016-12-01T18:12:26Z")
> [@Bricker](#): > > Except that you ignore the point I made above: Obama nominates Pryor and the Senate would fall all over itself confirming. Same nominator, different nominee, different result. They stated loudly and clearly they’d reject anyone and everyone, and refuse to hold hearings. They stated this before Garlands name came up. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [December 1, 2016, 6:31pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/213 "2016-12-01T18:31:28Z")
> [@DrDeth](#): > > They stated loudly and clearly they’d reject anyone and everyone, and refuse to hold hearings. > > They stated this before Garlands name came up. Given the number of times the GOP gets accused of lying, it is a little startling to see the assumption that what they say is absolutely trustworthy no matter what the political fallout. Regards, Shodan ---
**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:** [December 1, 2016, 7:04pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/214 "2016-12-01T19:04:49Z")
> [@Bricker](#): > > Absolute error. > > Bork believed, in my view correctly, that the act was not illegal. The statute that created the Special Prosecutor at the time did so under the executive authority. The Special Prosecutor was a creature of the President and the President had every legal right to fire him. I thought the special prosecutor was a federal position from which you could only be fired for cause and not because the President didn’t want to hand over the Nixon tapes. > [@](#): > > Bork did not resign at the express request of Rucklehaus and Richardson, who had both just resigned rather than follow the order. They realized that Nixon would continue firing until he appointed the mail room supervisor as Acting Attorney General and told him to fire Cox. Both Richardson and Ruckelhaus asked Bork to stay; Bork wanted to resign as well. cite? > [@](#): > > It’s true that Nixon promised a Supreme Court post to Bork. But he did so after the fact – that is, there was never the quid pro quo that you suggest. And of course Nixon was ultimately in no position to fulfill that promise in any event, and no reason whatsoever to believe that Reagan had any knowledge of, or obligation to, that promise. I was not saying Reagan was upholding Nixon’s promise. Just that Bork had his eyes on SCOTUS. It may not have been quid pro quo but I thought it was part of the understanding. > [@](#): > > True. The Bork hearings certainly let nominees know that bland platitudes are preferable to truth when testifying for confirmation. Yay Democrats! > > This thread is almost making me wish I not only voted for Trump but sent a fat check his way. I can only pray he keeps his word or is too lazy to do anything except say, “Hey, find that list we put out,” when the subject of nominations comes up. The left needs to have its collective noses rubbed in the concept of judicial adherence to the text of the law, and soon. Bork’s opinions about private businesses being free to serve who they please is not nearly as relevant as his opinion about how a judge applies the law to the facts. > > Liberals have enjoyed a long period in which they automatically ask the courts for what they cannot achieve at the ballot box. It’s time for that to start turning back, ironically at the hands of a buffoon who probably can’t spell textualism and thinks originalism is when a TV episode airs the first time. I don’t think Trump would be any worse than any other Republican when it comes to SCOTUS nominations. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [December 1, 2016, 7:19pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/215 "2016-12-01T19:19:16Z")
> [@Damuri\_Ajashi](#): > > cite? Bork said so in his hearings ([cite](http://www.nytimes.com/1987/09/17/us/the-bork-hearings-echoes-of-a-massacre-bork-on-cox-s-dismissal.html)). > [@](#): > > Mr. Richardson said he believed that Mr. Bork had performed honorably in the incident and that he deserved credit. > > ‘‘I had asked the legal counsel to check whether Nixon had the right to fire Cox,’’ Mr. Richardson said. ‘‘The legal counsel concluded that he did. Therefore, we thought Bork could do the right thing and deliver that message; Bork deserves a lot of credit for standing up to Nixon and telling him to appoint another special prosecutor.’’ [Cite](http://www.nytimes.com/1987/06/30/us/bork-nomination-to-court-weighed-by-the-president.html?pagewanted=all). If that is what you are asking. Regards, Shodan ---
**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, 7:29pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/216 "2016-12-01T19:29:18Z")
> [@Shodan](#): > > Given the number of times the GOP gets accused of lying, it is a little startling to see the assumption that what they say is absolutely trustworthy no matter what the political fallout. > > Regards, > Shodan Well, that’s convenient. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 1, 2016, 9:25pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/217 "2016-12-01T21:25:45Z")
> [@Damuri\_Ajashi](#): > > I thought the special prosecutor was a federal position from which you could only be fired for cause and not because the President didn’t want to hand over the Nixon tapes. Did you? And what, in your understanding, was the legal definition of “cause” that applied to the statute at the time? > [@](#): > > cite? [Cited many times on this board and in the real world:](http://www.nytimes.com/1987/07/02/us/bork-irked-by-emphasis-on-his-role-in-watergate.html) > [@](#): > > ''The reason for the discharge was that I had, I thought, to contain a very dangerous situation, one that threatened the viability of the Department of Justice and of other parts of the executive branch. > > ‘‘The President and Mr. Cox had gotten themselves, without my aid, into a position of confrontation,’’ Mr. Bork said. ''There was never any question that Mr. Cox, one way or another, was going to be discharged. At that point you would have had massive resignations from the top levels of the Department of Justice. > > ‘‘If that had happened,’’ Mr. Bork continued, ‘‘the Department of Justice would have lost its top leadership, all of it, and would I think have effectively been crippled.’’ > > Earlier this week, Mr. Richardson said in an interview that he believed Mr. Bork had performed admirably. > > ‘‘I had asked the legal counsel to check whether Nixon had the right to fire Cox,’’ Mr. Richardson said. ‘‘The legal counsel concluded that he did. Therefore, we thought Bork could do the right thing and deliver that message. Bork deserves a lot of credit for standing up to Nixon and telling him to appoint another special prosecutor.’’ > [@](#): > > I was not saying Reagan was upholding Nixon’s promise. Just that Bork had his eyes on SCOTUS. It may not have been quid pro quo but I thought it was part of the understanding. You thought wrongly. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [December 1, 2016, 10:04pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/218 "2016-12-01T22:04:13Z")
> [@Bricker](#): > > You misapprehend the textualist approach. It is properly applied to legislation, and not remotely relevant when it comes to political speechifying. Congress speaks through its words, says a textualist, but those words are the ones passed as laws. Indeed, what you’re doing is exactly what textualism abhors: trying to divine the will of Congress by looking to external evidence of Congressional intent. But Congress passed no act requiring interpretation in this case, so extrinsic evidence is the _only_ evidence of Congressional intent. You might say the question here is not so much the will of the legislature, but the _won’t_. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [December 1, 2016, 10:14pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/219 "2016-12-01T22:14:37Z")
Bork is a red Herring. Bork was given a hearing and considered. 58 Senators voting against, with 7 of them being GOP. The Senate did the job they were supposed to do. It’s never been a automatic rubber stamp. Pray tell me, Bricker, what was the Senate vote on Garland?:rolleyes::dubious: If they had given Garland a hearing and the vote was 58 to 42 with 7 Dems crossing over, I’d have to say the Senate did what they were supposed to do. And that’s all they would have had to do. Hell, even 54 to 44 along strict party lines would be adequate. I wouldnt be happy, but hey, they would have done their job. So, Bork is a Red herring, and a non issue until and when they give Garland a hearing and a Vote. ---
**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, 10:22pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/220 "2016-12-01T22:22:30Z")
> [@DrDeth](#): > > … until and when they give Garland a hearing and a Vote. It’s not going to happen. [Previous page](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297.md?page=10) [Next page](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297.md?page=12)