# 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:** 14
**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, 6:13pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/261 "2016-12-02T18:13:31Z")
> [@cmkeller](#): > > Dr Deth: > > Did they ever actually say that? [Yes](http://www.pbs.org/newshour/rundown/clinton-wins-gop-say-no-9-supreme-court/). “If Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court,” North Carolina Sen. Richard Burr said in an audio recording of his meeting with GOP volunteers on Saturday. CNN obtained a copy of the audio. GOP Sens. John McCain of Arizona and Ted Cruz of Texas have also suggested blocking any Clinton nominees. Sen. Rand Paul, R-Ky., said in a debate Monday night that he “can’t imagine” voting for any Clinton nominee though he stopped short of vowing to block a pick from a Democratic president. ---
**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, 6:17pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/262 "2016-12-02T18:17:26Z")
> [@Fiveyearlurker](#): > > 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. I was responding to various posters who keep repeating again and again “BUT BORK GOT A HEARING!!!” as if this has some sort of huge significance. Your distinction does not relate to that issue. > [@](#): > > 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_. This has been addressed repeatedly. The Republicans guessed that there was virtually no chance that Obama would nominate anyone remotely comparable to Scalia, so that was based on ideology. ---
**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, 6:23pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/263 "2016-12-02T18:23:59Z")
> [@Fiveyearlurker](#): > > [Yes](http://www.pbs.org/newshour/rundown/clinton-wins-gop-say-no-9-supreme-court/). > “If Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court,” North Carolina Sen. Richard Burr said in an audio recording of his meeting with GOP volunteers on Saturday. CNN obtained a copy of the audio. > > GOP Sens. John McCain of Arizona and Ted Cruz of Texas have also suggested blocking any Clinton nominees. Sen. Rand Paul, R-Ky., said in a debate Monday night that he “can’t imagine” voting for any Clinton nominee though he stopped short of vowing to block a pick from a Democratic president. Which are three or four out of 52 Republican senators. ---
**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, 6:34pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/264 "2016-12-02T18:34:04Z")
> [@Fotheringay-Phipps](#): > > This has been addressed repeatedly. The Republicans guessed that there was virtually no chance that Obama would nominate anyone remotely comparable to Scalia, so that was based on ideology. That’s not what they said, and your mind reading seems antithetical to the actions taken. ---
**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, 6:37pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/265 "2016-12-02T18:37:23Z")
> [@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. That’s not a cite that a hearing is contained in"the Job". Not even close. No hearing is required at all. What constitutes Advice and Consent is completely at the discretion of the Senate. Their advice could consist entirely of telling the President that the nominee needs to grow 4 inches taller. Do you have an actual cite that supports your claim? This is almost rhetorical because I know none exists. ---
**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, 6:55pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/266 "2016-12-02T18:55:34Z")
> [@DrDeth](#): > > But Bork GOT HIS HEARING, yes? Yes, he did. And it accomplished just as much as the GOP refusing to hold hearings on Garland - the Senate declined to give its consent to a SCOTUS nomination. > [@](#): > > Did the Senate give Advice and Consent? That’s their job. It sez so. They don’t have to give Consent. The Constitution does not specify how they have to give Advice - therefore saying “don’t bother because we aren’t going to accept anyone you send” is just as Constitutionally valid as holding a full set of hearings and then voting No. Regards, Shodan ---
**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 2, 2016, 7:06pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/267 "2016-12-02T19:06:38Z")
> [@Shodan](#): > > They don’t have to give Consent. The Constitution does not specify how they have to give Advice - therefore saying “don’t bother because we aren’t going to accept anyone you send” is just as Constitutionally valid as holding a full set of hearings and then voting No. > > Regards, > Shodan It’s really a moot point since there is no remedy. It’s a law being on the books, but with no punishment assigned to breaking it. What difference does it make? None. ---
**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, 7:11pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/268 "2016-12-02T19:11:55Z")
It’s not completely moot because it raises the question of whether the voters should punish them for it at the polls. If they’re really in dereliction of their constitutional responsibilities - as people here are claiming - then it would make sense for voters to punish them for it. If not, then not. That seems to be what this argument is about, anyway. ---
**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, 7:22pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/269 "2016-12-02T19:22:31Z")
> [@Fiveyearlurker](#): > > > [@Fotheringay-Phipps](#): > > > > This has been addressed repeatedly. The Republicans guessed that there was virtually no chance that Obama would nominate anyone remotely comparable to Scalia, so that was based on ideology. > > That’s not what they said, and your mind reading seems antithetical to the actions taken. I would say, on the contrary, the actions taken indicate that the Republicans’ guess was quite correct. The GOP figured Obama wouldn’t nominate a conservative - he didn’t. He picked Garland. Besides, neither Obama nor the GOP is dumb. If Obama thought it was worth it getting the GOP to flip-flop and break their “word” to not have hearings on anyone, he could have nominated some staunch conservative and enjoyed the sight of the GOP falling all over themselves in contradiction. But that is kind of a Pyrrhic victory - do you really think it would hurt the GOP to get a conservative on the Court? Even if they have to flip-flop? So Obama nominates a conservative. The Dems in the Senate get to vote on it, too. What are they going to do - go along with their (lame duck) President and vote to confirm someone who might overturn Roe v. Wade? How will that play with _their_ base? Or they can vote No and go against their President. Keep in mind that this was before the elections. What does Hillary say - “a President is entitled to have his nominations confirmed” and the pro-choicers won’t vote for her, or “Obama nominated an unqualified jerk” and pfft goes the black vote. Regards, Shodan ---
**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, 7:23pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/270 "2016-12-02T19:23:51Z")
> [@Fotheringay-Phipps](#): > > It’s not completely moot because it raises the question of whether the voters should punish them for it at the polls. If they’re really in dereliction of their constitutional responsibilities - as people here are claiming - then it would make sense for voters to punish them for it. If not, then not. That seems to be what this argument is about, anyway. Do you think that this last election outcome was the result of voters choosing to punish Senate Republicans for dereliction of their constitutional responsibilities or not? I could see it argued both ways. ---
**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, 7:30pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/271 "2016-12-02T19:30:14Z")
> [@HurricaneDitka](#): > > 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? So, did they advise and consent? Thats how the Senate gives advise and consent, by holding a confirmation hearing and a vote. I guess, they could have just held the vote and that would be meeting advise and consent. Or a number of other things. But by not voting not hearing and not doing anything but act like petulant children, they did not " advise and consent". But they did not advise and consent ---
**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, 7:45pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/272 "2016-12-02T19:45:50Z")
No, the Senate gives advice in accordance with the rules that the Senate sets up for itself. There is no Senate rule that the Senate must hold hearings on any nominee. Regards, Shodan ---
**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, 7:46pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/273 "2016-12-02T19:46:20Z")
> [@DrDeth](#): > > So, did they advise and consent? Thats how the Senate gives advise and consent, by holding a confirmation hearing and a vote. Holding a hearing is a relatively recent invention. There is no constitutional requirement nor Senate rule that the Senate must hold a confirmation hearing and vote to withhold their Advise and Consent. > [@DrDeth](#): > > I guess, they could have just held the vote and that would be meeting advise and consent. Or a number of other things. But by not voting not hearing and not doing anything but act like petulant children, they did not " advise and consent". > > But they did not advise and consent They only constitutionally have to be over age 30. No requirement that they must ACT as if they are over age 30 to be a senator. :rolleyes: ---
**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, 7:47pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/274 "2016-12-02T19:47:23Z")
> [@DrDeth](#): > > So, did they advise and consent? They certainly didn’t consent, but they advised the President that they wouldn’t do that even before he made the nomination. Trying to argue that this is some egregious constitutional dereliction of duty when the Constitution says so little about it seems silly to me. Like Bone noted up-thread, “Their advice could consist entirely of telling the President that the nominee needs to grow 4 inches taller.” You could convincingly argue that they violated a modern political norm by not holding a hearing, but it just doesn’t have the same ring to it, does it? Besides, it’s a whole lot less compelling of an argument when Senate Dems have already violated various political norms. ---
**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 2, 2016, 7:54pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/275 "2016-12-02T19:54:06Z")
> [@Fotheringay-Phipps](#): > > It’s not completely moot because it raises the question of whether the voters should punish them for it at the polls. If they’re really in dereliction of their constitutional responsibilities - as people here are claiming - then it would make sense for voters to punish them for it. If not, then not. That seems to be what this argument is about, anyway. Voters can punish Congress for anything they like. Likewise, they can choose not to punish them for anything they like, whether there is a constitutional issue or not. ---
**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, 8:00pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/276 "2016-12-02T20:00:55Z")
> [@DrDeth](#): > > 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. No, he wasn’t. > [@](#): > > 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? I can’t tell from this description. The guy that got a hearing before prison – was he judged on inadmissible evidence by people predisposed to dislike him and convict him? Or was he judged fairly, on the merits of his case by people carefully applying only the correct criteria? Because it’s certainly possible that NEITHER of your cases is what I like to picture as “the American way.” ---
**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, 8:05pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/277 "2016-12-02T20:05:57Z")
> [@HurricaneDitka](#): > > They certainly didn’t consent, but they advised the President that they wouldn’t do that even before he made the nomination. Trying to argue that this is some egregious constitutional dereliction of duty when the Constitution says so little about it seems silly to me. The whole argument is silly. If you buy the notion that the Senate has a constitutional requirement to give “advice” then they would also have the same constitutional requirement to give “consent” - it’s part of the same phrase, and you can’t split them. Which would mean any Senate which does not consent to any presidential nomination is derelict in their constitutional duty. Clearly there’s no requirement for the Senate to do anything at all - only that the appointments only take effect with the advice and consent. > [@John\_Mace](#): > > Voters can punish Congress for anything they like. Likewise, they can choose not to punish them for anything they like, whether there is a constitutional issue or not. That’s true. But some voters would like to punish congress for violating the constitution. So whether or not congress did this is not moot to those voters. ---
**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 2, 2016, 8:08pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/278 "2016-12-02T20:08:15Z")
> [@Fotheringay-Phipps](#): > > But some voters would like to punish congress for violating the constitution. So whether or not congress did this is not moot to those voters. Probably because there is no remedy, there is also no official body to decide that. The voters have to figure that out all by their lonesomes. They can read what the experts have to say, but none of the experts has an official status to say yeah or nay. ---
**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, 8:08pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/279 "2016-12-02T20:08:32Z")
> [@DrDeth](#): > > So, did they advise and consent? Thats how the Senate gives advise and consent, by holding a confirmation hearing and a vote. > > I guess, they could have just held the vote and that would be meeting advise and consent. Or a number of other things. But by not voting not hearing and not doing anything but act like petulant children, they did not " advise and consent". > > But they did not advise and consent Sure they did. They just didn’t do so by holding hearings and taking a vote. You don’t have the power to declare that “advise and consent” means holding hearings, specifically, do you? I mean, you’re not quoting from the Senate rules, or Federalist No. 47, are you? So when you say, “But they did not advise and consent,” what’s actually behind that statement is, “But they did not advise and consent as I wish the term to be defined, but since it isn’t, I’ll just announce that they didn’t and hope no one calls me on my attempt to argue by assertion.” Is that what you meant, **DrDeth**? Or was it Federalist 47 after all? Do tell. ---
**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, 8:10pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/280 "2016-12-02T20:10:41Z")
> [@John\_Mace](#): > > Probably because there is no remedy, there is also no official body to decide that. The voters have to figure that out all by their lonesomes. They can read what the experts have to say, but none of the experts has an official status to say yeah or nay. Of course. That’s why the appropriate venue for this discussion is not a courtroom but rather a MB discussion like this one. 🙂 [Previous page](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297.md?page=13) [Next page](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297.md?page=15)