# 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:** 13
**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 2, 2016, 4:55pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/241 "2016-12-02T16:55:04Z")
Bricker: > [@](#): > > The strain that runs consistently through this thread, and tens of thousands of its cousins here on the SDMB, is the seldom-spoken assumption that, ultimately, liberal polices are CORRECT. They are moral, they are right, they help people. And, conversely, conservative policies are WRONG. They are immoral, they are regressive, they hurt the most vulnerable among us. Bricker, I lean right and agree with the above paragraph, but I still don’t see that it justifies the Senate refusing to hold any hearings on any Obama Supreme Court nominee. We elect and pay legislators to do a job. That doesn’t mean rubber-stamping nominations or legislation, if a majority is opposed to something, they should vote it down. But there should be discussion and voting, not just sitting on their asses. I can’t see that objecting to a Senatorial refusal to act on something that’s within the Senate’s official duties (even if technically they can get away without doing it) is a liberal-conservative issue. If the Republican-controlled Senate wanted revenge for Bork, let them grill Garland and then vote him down. Instead of legislating, the Senate was, effectively, campaigning for the Republican nominee for President. Granted, it worked, and the next nominee will likely be conservative, which is an outcome that I favor, but I don’t agree that this was the right thing to do. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 2, 2016, 5:03pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/242 "2016-12-02T17:03:14Z")
> [@cmkeller](#): > > Instead of legislating, the Senate was, effectively, campaigning for the Republican nominee for President. Granted, it worked, and the next nominee will likely be conservative, which is an outcome that I favor, but I don’t agree that this was the right thing to do. Me neither: > [@Bricker](#): > > I’ll say again that if I were a senator, I would not only have voted to allow hearings for Garland but voted to confirm him, even though he’s not my cuppa tea, judicially speaking, because I believe my duty as a senator is to confirm a qualified nominee that the President presents, and not play bullshit games with the word “nominee.” ---
**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 2, 2016, 5:06pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/243 "2016-12-02T17:06:40Z")
I agree with Bricker’s post above, and think the following needs to be emphasized more (I assume this is part of what he was saying). **The way you deal with your political opponents cannot be based entirely on how moral or immoral you consider them. It has to be based on the fact that they exist.** I think a lot of people lose sight of this, both in these debates and IRL. The point of the “rules” (whether official/legal or just customary/traditional) is not that you respect the other guys so much that you treat them with respect. It’s that however much contempt you may have for them, they may have the same level of contempt for you. So unless you want to avoid violence and wars, you both come to some sort of accepted “Marquess of Queensbury” rules and procedures that enable you to get along. In the long run, it’s probably better that way. But the crucial point is that both sides have to keep the same rules. Any time one side gets the sense that they’re the only ones playing by the rules and the other side is just making things up as they go along, then it’s all out warfare. You want to make the rules not apply to tiny fringe groups, you’re OK. They can’t do anything anyway. But to the extent that your opponents are a substantial percentage of the population, then if you want to use your view of your opponents’ morality as a determining factor, then they’ll do the same to you, and who is to say you’re better off. > [@cmkeller](#): > > Bricker: > But there should be discussion and voting, not just sitting on their asses. I can’t see that objecting to a Senatorial refusal to act on something that’s within the Senate’s official duties (even if technically they can get away without doing it) is a liberal-conservative issue. > > If the Republican-controlled Senate wanted revenge for Bork, let them grill Garland and then vote him down. That seems like a completely pointless waste of time to me. You’re saying they should have a completely phony hearings process, where the outcome is determined in advance and they’re just going through the motions. I like it better if they’re upfront about what they’re doing. ---
**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 2, 2016, 5:07pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/244 "2016-12-02T17:07:27Z")
Bricker: So if you and I both agree on that, where does your post about the leftward slant of this board fit into the thread? ---
**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 2, 2016, 5:10pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/245 "2016-12-02T17:10:48Z")
Fotheringray-Phipps: > [@](#): > > That seems like a completely pointless waste of time to me. You’re saying they should have a completely phony hearings process, where the outcome is determined in advance and they’re just going through the motions. I like it better if they’re upfront about what they’re doing. An on-the-record debate over an issue is not a waste of time. If Senators debate the merits of a nominee, and this debate is public, and the resulting votes are public, then the people have a record of the Senator’s votes and the reasons (or lack thereof) behind them to base their next vote on. ---
**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 2, 2016, 5:18pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/246 "2016-12-02T17:18:47Z")
Everything is just as public the way they did it. Even more so, because they’re not making any pretenses. They’ve said outright that they are rejecting Garland because they’re rejecting any and all Obama nominees. That’s pretty public and anyone who wants can vote on that basis. (Democrats actually thought they would be able to make an issue of this in swing states, but it doesn’t seem to have worked out that way.) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 2, 2016, 5:31pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/247 "2016-12-02T17:31:00Z")
> [@cmkeller](#): > > Bricker: So if you and I both agree on that, where does your post about the leftward slant of this board fit into the thread? I was drawing the distinction between an action I personally would not choose and a belief that no reasonable person could possibly adopt that approach for any acceptable reason. In other words, I regard the Senate’s action as unwise but not beyond the limits of rational response. ---
**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 2, 2016, 5:36pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/248 "2016-12-02T17:36:00Z")
> [@cmkeller](#): > > Bricker: > > Bricker, I lean right and agree with the above paragraph, but I still don’t see that it justifies the Senate refusing to hold any hearings on any Obama Supreme Court nominee. We elect and pay legislators to do a job. That doesn’t mean rubber-stamping nominations or legislation, if a majority is opposed to something, they should vote it down. But there should be discussion and voting, not just sitting on their asses. I can’t see that objecting to a Senatorial refusal to act on something that’s within the Senate’s official duties (even if technically they can get away without doing it) is a liberal-conservative issue. > > If the Republican-controlled Senate wanted revenge for Bork, let them grill Garland and then vote him down. Instead of legislating, the Senate was, effectively, campaigning for the Republican nominee for President. Granted, it worked, and the next nominee will likely be conservative, which is an outcome that I favor, but I don’t agree that this was the right thing to do. There are currently about 69,000 nominations submitted to the Senate in each two year period. (per [Senate website](http://www.senate.gov/artandhistory/history/common/briefing/Nominations.htm)) No way the Senate could give anything approximating a debate on all of them. That is 94.5 nominations every day, 7 days a week, for two years with no days off. We NEED them to rubber stamp most of them or nothing would get done. So we really are only talking about a few headliner nominations that we really expect will ever get the full treatment - Cabinet posts and top department leadership roles, SCOTUS and Appeals court positions, and a very few of the top military leadership. A couple dozen at most. ---
**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:** [December 2, 2016, 5:36pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/249 "2016-12-02T17:36:14Z")
> [@Fiveyearlurker](#): > > I guess the idea of the parties doing what they should do, rather than what they can do, is naive. Have you come across the idea of “playing to win”? [Here is a long article](http://sirlingames.squarespace.com/articles/playing-to-win-part-1.html) in the context of gaming: > [@](#): > > If an expert does anything he can to win, then does he exploit bugs in the game? The answer is a resounding yes…but not all bugs. … > > But there is a limit. There is a point when the bug becomes too much. In tournaments, bugs that turn the game off, or freeze it indefinitely, or remove one of the characters from the playfield permanently are banned. Bugs so extreme that they stop gameplay are considered unfair even by non-scrubs. As are techniques that can only be performed on, say, the player-1 side of the game. Tricks in fighting games that are side-dependent (that is, they can only be performed by the 2nd player or only by the first player) are sometimes not allowed in tournaments simply because both players don’t have equal access to the trick–not because the tricks are too powerful. So is not holding a vote Akuma level game breaking? Perhaps - then the rules should be changed. Until then, it’s a valid tactic with longstanding historical precedent. I recommend the entire article. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 2, 2016, 5:42pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/250 "2016-12-02T17:42:05Z")
> [@Fotheringay-Phipps](#): > > It’s that however much contempt you may have for them, they may have the same level of contempt for you. So unless you want to avoid violence and wars, you both come to some sort of accepted “Marquess of Queensbury” rules and procedures that enable you to get along. In the long run, it’s probably better that way. But the crucial point is that both sides have to keep the same rules. Any time one side gets the sense that they’re the only ones playing by the rules and the other side is just making things up as they go along, then it’s all out warfare. This, one hundred times. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [December 2, 2016, 5:50pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/251 "2016-12-02T17:50:22Z")
> [@cmkeller](#): > > Fotheringray-Phipps: > > An on-the-record debate over an issue is not a waste of time. If Senators debate the merits of a nominee, and this debate is public, and the resulting votes are public, then the people have a record of the Senator’s votes and the reasons (or lack thereof) behind them to base their next vote on. I understand your point, I think, but SCOTUS nominee hearings don’t always involve any genuine debate. Maybe I’m older than you are - probably I am - but I remember Ted Kennedy’s and other Democrat’s performance during the Bork hearings. Ted would read some completely stupid and loaded “question” that his staffers had prepared for him, Bork would give a detailed and scholarly response, and Ted would completely ignore the answer and read the next stupid and loaded question off the list. Regards, Shodan ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [December 2, 2016, 5:50pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/252 "2016-12-02T17:50:48Z")
> [@Bricker](#): > > Bork: Yes > > Garland: No > > So what? What do you imagine those answers demonstrate? Becuase it’s the Job of the Senate to give a fair hearing. You bringing up Bork is a 100% red herring as he was given a fair hearing. Ok, let’s take two guys arrested for murder: One gets a fair hearing and is sent to prison for life. The other doesnt get a hearing but is still sent to prison for life. Which is the right way- the American way? ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [December 2, 2016, 5:52pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/253 "2016-12-02T17:52:52Z")
> [@Shodan](#): > > I understand your point, I think, but SCOTUS nominee hearings don’t always involve any genuine debate. But Bork GOT HIS HEARING, yes? ---
**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:** [December 2, 2016, 5:55pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/254 "2016-12-02T17:55:23Z")
> [@DrDeth](#): > > Becuase it’s the Job of the Senate to give a fair hearing. No it’s not. Do you have a cite that a hearing is contained in"the Job"? > [@](#): > > One gets a fair hearing and is sent to prison for life. > The other doesnt get a hearing but is still sent to prison for life. > > Which is the right way- the American way? A right to trial is an enumerated right in the constitution. This is a very poor analogy. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [December 2, 2016, 6:05pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/255 "2016-12-02T18:05:18Z")
> [@Bricker](#): > > The strain that runs consistently through this thread, and tens of thousands of its cousins here on the SDMB, is the seldom-spoken assumption that, ultimately, liberal polices are CORRECT. They are moral, they are right, they help people. And, conversely, conservative policies are WRONG. They are immoral, they are regressive, they hurt the most vulnerable among us. > > This conviction infects all sorts of weighing and analysis. It means that when Democrats violate a norm of politics they are generally seen as doing so for good reasons, right reasons, moral reasons. Obviously it’s possible for Democrats to do something so egregious that even the SDMB will flinch, but as a starting point, the party enjoys this presumption. > > And, naturally, the reverse is true. When Republicans violate a norm, they are doing so to advance goals that are poor reasons, wrong reasons, immoral or outright evil reasons. > > In the modern era, I contend that it was Democrats who threw the first substantive “change punch,” by actively campaigning against Bork’s confirmation and defeating it. This broke the norm; this led to Republicans doing worse violence to the process, which led to Democrats doing even worse, ultimately removing the filibuster possibility for non-Supreme Court appointees. And now it will likely lead to Republicans pulling the pin on that barrier. No because Bork\* got his hearing. \* The Senate has rejected a good number of SCOTUS nominees in the past. The Dems (and a good number of Republicans too, mind you, if some Repubs hadnt crossed over, Bork might not have been rejected, but 7 of the top Repubs voted against him) did not do anything new at all by holding a hearing and rejecting Bork. It’s the GOP that crossed a new line by saying both: 1. They wouldnt hold any hearings at all, period. 2. they would not accept any SCOTUS nominees by Clinton if she won. ---
**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 2, 2016, 6:05pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/256 "2016-12-02T18:05:37Z")
> [@Bone](#): > > A right to trial is an enumerated right in the constitution. This is a very poor analogy. Beyond that, a hearing where the outcome is determined in advance and is not based on anything said at the hearing is not a meaningful hearing or a valid comparison to a trial. Maybe to a Soviet/communist show trial, perhaps. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [December 2, 2016, 6:08pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/257 "2016-12-02T18:08:27Z")
> [@Bone](#): > > No it’s not. Do you have a cite that a hearing is contained in"the Job"? > > A right to trial is an enumerated right in the constitution. This is a very poor analogy. Article II, Section 2, paragraph 2 of the United States Constitution states: _[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments._ Did the Senate give _Advice and Consent_? That’s their job. It sez so. No, they sat in the corner like a bunch of petulant 2nd graders, sulking. ---
**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 2, 2016, 6:08pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/258 "2016-12-02T18:08:48Z")
Dr Deth: > [@](#): > > 1. they would not accept any SCOTUS nominees by Clinton if she won. Did they ever actually say that? ---
**Author:** ![Fiveyearlurker](https://avatars.discourse-cdn.com/v4/letter/f/da6949/32.png) [@Fiveyearlurker](https://boards.straightdope.com/u/Fiveyearlurker)\ **Post date:** [December 2, 2016, 6:10pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/259 "2016-12-02T18:10:55Z")
> [@Fotheringay-Phipps](#): > > Beyond that, a hearing where the outcome is determined in advance and is not based on anything said at the hearing is not a meaningful hearing or a valid comparison to a trial. Maybe to a Soviet/communist show trial, perhaps. I don’t disagree that the outcome might have been “determined in advance”, but that was based on his record, not his party. Kennedy was approved unanimously. Garland was rejected _before his name was announced_, and multiple GOP Congressmen publicly stated that Clinton nominees would also be rejected _regardless of who they were_. The two events are not comparable. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [December 2, 2016, 6:11pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/260 "2016-12-02T18:11:09Z")
> [@DrDeth](#): > > Article II, Section 2, paragraph 2 of the United States Constitution states: > > _[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments._ > > Did the Senate give _Advice and Consent_? That’s their job. It sez so. > > No, they sat in the corner like a bunch of petulant 2nd graders, sulking. You don’t find it odd that the word “hearing” doesn’t appear in Article II, Section 2, paragraph 2 of the United States Constitution? [Previous page](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297.md?page=12) [Next page](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297.md?page=14)