# 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:** 16
**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 5, 2016, 5:27pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/301 "2016-12-05T17:27:32Z")
It’s the most they can do without a Senate majority. ---
**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 5, 2016, 7:12pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/302 "2016-12-05T19:12:53Z")
> [@HurricaneDitka](#): > > McConnell drew the line in February. If a similar situation were to arise in January of Trump’s last year, and the Senate is held by the Dems, it wouldn’t surprise me if Schumer moved the line to January. You’ve been given Schumer’s statement in context. Why do you continue to read it out of context? Or is there some other reason why you think Schumer would do this? > [@](#): > > Of course, but neither was turning “Bork” into a verb, or Harry Reid nuking the filibuster. They were partisan power grabs. So was this. Those worked and so has this. Bork was exceptional in his desire to turn back the clock on civil rights. Yes this worked but I don’t think it benefits the country no matter which side does it. > [@](#): > > I think Iggy did a wonderful job in post #123 showing that you’re wrong on this point. Didn’t that judge get a vote? Isn’t that different than what we have here? ---
**Author:** ![Fiveyearlurker](https://avatars.discourse-cdn.com/v4/letter/f/da6949/32.png) [@Fiveyearlurker](https://boards.straightdope.com/u/Fiveyearlurker)\ **Post date:** [December 5, 2016, 7:14pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/303 "2016-12-05T19:14:17Z")
It doesn’t matter how non-equivalent it is, it will still be held up as an equivalence. ---
**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 5, 2016, 7:26pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/304 "2016-12-05T19:26:11Z")
> [@Fotheringay-Phipps](#): > > I disagree with this. Yeah, I think we do. I think the Bork nomination would be like Obama nominating Ruth Bader Ginsburg with a Republican senate. But at least Bork got a hearing and a vote. ---
**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 5, 2016, 7:32pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/305 "2016-12-05T19:32:44Z")
> [@Bricker](#): > > So was Bork’s treatment. How do you figure? Unless you consider the advise and consent requirement to be a rubber stamp, all they owe the President is a vote. Not a confirmation. Bork was not confirmable by a Democratic senate. Garland didn’t get hearings because he was confirmable by the senate. > [@](#): > > But what you’re asking for is the power to skirt only the rules you wish to skirt, when you wish to skirt them, Which rules do I wish to skirt? > [@](#): > > and coupling that with an apparent wish that the opposition adhere scrupulously to the rules, unless you break them first, and maybe not even then. Which rules am I applying to Republicans that I am not applying to Democrats? > [@](#): > > Listen carefully, and repeat after me: NO. Not gonna happen. That’s fine but its still unprincipled and against the fairly clear intent of the constitution that the president gets to nominate to SCOTUS and the senate can accept or reject that nomination. ---
**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 5, 2016, 7:39pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/306 "2016-12-05T19:39:26Z")
> [@Bricker](#): > > Let’s say you’re right. > > That’s still not supposed to be the role of the Senate. > > The President had the right to nominate Bork; the Senate scuttled him because they wanted to stop a rightward move of the court. If that’s true, then… > > …The President had a right to nominate Garland; the Senate scuttled him because they wanted to stop a leftward move of the court. They didn’t vote. They didn’t even consider. > [@](#): > > It amounts to the same problem: liberals happy to use the tactic when it benefits them and somehow astonished when it’s used against them. Voting no is acceptable. It has to be unless the advise and consent requirement is meant to be a rubber stamp. Refusing to vote at all. refusing to even consider a nominee? That’s different. Its like the difference between apples and blow jobs. > [@](#): > > Few topics make me as furious as the rejection of Bork, except the doe-eyed mewling that now accompanies the return of the serve. Bork got rejected by a Democratic senate, Reagan was naïve to nominate him in the first place. You can be upset about the chicanery (particularly feminists and pro-choice folks) on the left to bring about that rejection but the senate did its job in that case. Here, they did not. As a general principle, the scorched earth approach to SCOTUS nominations in the modern era started with Bork and Democrats have nothing to be proud of. But the senate did its job. Not so in the case of Garland. ---
**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 5, 2016, 7:46pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/307 "2016-12-05T19:46:29Z")
> [@Fotheringay-Phipps](#): > > I don’t buy the notion that the hearings are substantive, in the sense that people are genuinely making up their minds based on hearings. > > But even if they were “two different unprecedented things” it wouldn’t make much difference. Either you accept precedent or you don’t. If you push the envelope out there then someone else gets to push it even further. > > ETA: the same goes in other related areas as well. The Democrats did away with the filibuster for non-SC votes, but this increases the likelihood that the Republicans will eliminate it for SC votes if necessary. It’s not like you can claim “only we get to break precedents and not you”. No of course not as long as you are fulfilling your constitutional responsibilities. The filibuster is an artifact of the senate. Its what helps make it the world’s most deliberative body. But the senate can get rid of it according to its own rules. Not considering a supreme court nominee at all might not be as inflammatory as the bork hearings but one represents the senate doings it job in a partisan manner and the other represents the senate abrogating its job in a partisan manner. ---
**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 5, 2016, 7:48pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/308 "2016-12-05T19:48:17Z")
> [@Velocity](#): > > I agree that the actions are different - and the Republicans should have given Garland a hearing - but I don’t believe the Senate Democrats in 1987 were ever going to confirm Bork to begin with. I think they were always planning all along to vote against Bork. So had Garland been given a hearing, there’s a good chance it would have been a sham/kangaroo type of hearing likewise; in other words, never done so with serious Republican intent of confirming Garland. They would have gone through the motions of a hearing but still voted against him as planned. There are a load of swing state Republicans that can’t stand the fallout of voting against someone like Garland. They needed the cover of a leadership from safer states to prevent them from voting at all. ---
**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 5, 2016, 7:49pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/309 "2016-12-05T19:49:58Z")
> [@HurricaneDitka](#): > > I’m curious: why do you want this? I thought the filibuster rule was a good one, that helped moderate the Senate, particularly in this hyper-partisan era, and I was a bit disappointed to see it eliminated, and not just because it helped the Dems at the time. I think he s saying that he likes the talking filibuster much much better. Some filibusters are much more offensive, especially the secret kind where you just tell your party leader that you want to filibuster and don’t even have to identify yourself. ---
**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 5, 2016, 7:56pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/310 "2016-12-05T19:56:46Z")
> [@HurricaneDitka](#): > > You don’t see a possibility for a “Gang of 14”-style compromise here? For what it’s worth, I’m not even sure Schumer has enough control over his caucus to actually mount a successful filibuster. There are 10 Senate Democrats from states that Trump won who are up for re-election in 2018. I no longer believe the word impossible has any meaning. So yeah, anything is possible. I think that when President Ivanka nominates Judge Posner to the Supreme Court, Senator Chelsea Clinton from the great state of Cuba will lead a gang of 14 to stop the nomination and cause President Ivanka to nominate Attorney General Kardashian instead. ---
**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 5, 2016, 8:07pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/311 "2016-12-05T20:07:48Z")
[quote=“Fotheringay-Phipps, post:177, topic:773297”] Hmm … I’m getting this sort of feeling that you might yourself be a liberal …[/qote] Not according to the “liberals” on THIS board. According to them, I’m either a flat out conservative or a concern troll. But, yes, I identify as a liberal because that’s where the facts and my conscience leads me. ---
**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 5, 2016, 8:31pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/312 "2016-12-05T20:31:03Z")
> [@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. > > 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. > > 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. You mean like Citizens United, or Heller, or Crawford v Marion County? Bork’s views on civil rights alone was enough to justify people voting to reject him. Combine that with his view on abortion and there was almost no other possible outcome. ---
**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 5, 2016, 8:43pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/313 "2016-12-05T20:43:20Z")
> [@Shodan](#): > > 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)). > > [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 > [@Bricker](#): > > Did you? > > And what, in your understanding, was the legal definition of “cause” that applied to the statute at the time? > " > [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) > > You thought wrongly. I agree. I thought wrongly. Still not sure what constitutes “for cause” in that context. My understanding was that “for cause” did not include failure to accede to the demands of the subject of the investigation, even if he IS your bosses boss. I thought it included things like “misconduct” and “incompetence”, not things like “getting too close to the truth” ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [December 5, 2016, 8:46pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/314 "2016-12-05T20:46:29Z")
> [@](#): > > Originally Posted by \*\*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. We won the Voting Rights Act at the ballot box several times, but a majority the Supreme Court decided they didn’t like what Congress did. ---
**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 5, 2016, 8:48pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/315 "2016-12-05T20:48:09Z")
> [@Shodan](#): > > What specifically is the difference between holding hearings and rejecting everybody the President nominates until his term runs out, and announcing ahead of time that you are going to reject everybody the President nominates until his term runs out? Specifically. > > Regards, > Shodan Political accountability of folks like Susan Collins and Mark Kirk. ---
**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 5, 2016, 9:08pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/316 "2016-12-05T21:08:29Z")
> [@Damuri\_Ajashi](#): > > Voting no is acceptable. It has to be unless the advise and consent requirement is meant to be a rubber stamp. > > Refusing to vote at all. refusing to even consider a nominee? That’s different. > [@](#): > > As a general principle, the scorched earth approach to SCOTUS nominations in the modern era started with Bork and Democrats have nothing to be proud of. But the senate did its job. Not so in the case of Garland. This idea that the Senate didn’t do it’s job because they did not hold a hearing is a windmill. You and others may believe in your heart of hearts that the senate is required to have a hearing and they are being derelict in their duty, failing to perform something they have an obligation to perform, but no matter how many times this issue is raised it will fail. It fails because the senate does not have this duty, a hearing is not required, it’s not new ground they are treading on, and the ultimate outcome would be essentially the same. Saying the senate didn’t do its job with Garland is simply wrong. The senate decides what its job is. ---
**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 5, 2016, 9:13pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/317 "2016-12-05T21:13:23Z")
> [@Shodan](#): > > 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 I was in high school during the Bork hearings and when I heard Bork very academically explain why private businesses should be able to deny service to blacks, his opposition to the voting rights act, etc., I don’t think the smearing was necessary. But yeah, Ted Kennedy made Biden look like the smart guy in the room. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [December 5, 2016, 9:23pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/318 "2016-12-05T21:23:22Z")
> [@Damuri\_Ajashi](#): > > You’ve been given Schumer’s statement in context. Why do you continue to read it out of context? Or is there some other reason why you think Schumer would do this? My quoted words had nothing at all to do with Schumer’s past statements. I was making a prediction about a hypothetical future situation. It was a guess. Perhaps Schumer will surprise me and play the role of gentlemanly statesman and graciously give Trump’s SCOTUS nominee a hearing and a vote in 2020, but I doubt it. My reason for thinking it is that Democrats would be furious if he did. They see the Garland non-hearing as a dirty Republican trick, and would push him to do the same to Trump, if they could. This very thread started out with this: > [@Fiveyearlurker](#): > > The only possible way back to this that I can see is the Democrats making their strategy clear. We will block every single Republican nomination who is not named Merrick Garland until Garland is put on the bench. > [@Bryan\_Ekers](#): > > Democrats should say Trump shouldn’t nominate anyone in his last year of office, on the assumption that his impeachment is in a perpetual state of imminence. ---
**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 5, 2016, 9:23pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/319 "2016-12-05T21:23:48Z")
> [@Bone](#): > > This idea that the Senate didn’t do it’s job because they did not hold a hearing is a windmill. You and others may believe in your heart of hearts that the senate is required to have a hearing and they are being derelict in their duty, failing to perform something they have an obligation to perform, but no matter how many times this issue is raised it will fail. It fails because the senate does not have this duty, a hearing is not required, it’s not new ground they are treading on, and the ultimate outcome would be essentially the same. > > Saying the senate didn’t do its job with Garland is simply wrong. The senate decides what its job is. No, the Constitution decides what their job is. The entire point of a constitutional form of government is that the constitution includes their job description. The senate works for the American people. They are our employees, we hire them at the ballot box and we fire them at the ballot box. Senators (like most employees) have duties. Those duties include giving advice and consent to the president when they nominate judges. The senate might not get fired for dereliction of its duties but they are derelict all the same when they fail to provide advice and consent. It doesn’t have to be hearings, hearings are just a media spectacle. A useful one in the case of supreme court confirmations because it gives us an opportunity to get acquainted with a federal appointee for life who wields more power than any single senator or congressman. It doesn’t have to be hearings, it has to be advice and consent. It can be just about anything but it ought to end with a vote. ---
**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 5, 2016, 9:26pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/320 "2016-12-05T21:26:47Z")
> **[New Views Emerge Of Bork's Role in Watergate Dismissals (Published 1987)](https://www.nytimes.com/1987/07/26/us/new-views-emerge-of-bork-s-role-in-watergate-dismissals.html?pagewanted=3)** "Mr. Bork’s dismissal of the special prosecutor was challenged in a suit filed by Ralph Nader, the consumer advocate, among others. On Nov. 14, 1973, Federal District Judge Gerhard A. Gesell ruled that the dismissal of Mr. Cox, in the absence of a finding of extraordinary impropriety as specified in the regulation establishing the special prosecutor’s office, was illegal. " So yeah, the firing of Cox was illegal. I don’t know if the ruling would have stood up on appeal (I think it probably would have) but at the only court to consider the issue decided it was illegal. [Previous page](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297.md?page=15) [Next page](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297.md?page=17)