# 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:** 23
**Author:** ![Sinaptics](https://avatars.discourse-cdn.com/v4/letter/s/278dde/32.png) [@Sinaptics](https://boards.straightdope.com/u/Sinaptics)\ **Post date:** [January 31, 2017, 6:35pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/441 "2017-01-31T18:35:31Z")
> [@Velocity](#): > > Is that Constitutional? No idea. It’s the best I could come up with while writing the post 🙂 ---
**Author:** ![Sinaptics](https://avatars.discourse-cdn.com/v4/letter/s/278dde/32.png) [@Sinaptics](https://boards.straightdope.com/u/Sinaptics)\ **Post date:** [January 31, 2017, 6:36pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/442 "2017-01-31T18:36:32Z")
> [@Velocity](#): > > Sorry, I’m confused. Do you mean the Democrats, who have only 48 seats, or do you mean the Republicans need more than 52 seats to change the rules? Not to speak for him, but I think he means that a rule change is unlikely because only 4 Republicans need to defect to block the change. ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [January 31, 2017, 6:38pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/443 "2017-01-31T18:38:42Z")
I see, thanks. ---
**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:** [January 31, 2017, 8:27pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/444 "2017-01-31T20:27:49Z")
> [@Fotheringay-Phipps](#): > > It seems that you’re focusing on your own objection to the Republican tactic and not on what I wrote. > > Again, if Clinton won the election there was no point of keeping up that position. So they would have adopted the position that the voters had spoken and approved the guy. Actually, I’m focusing on [the Republicans’](http://www.cnn.com/2016/09/13/politics/mitch-mcconnell-merrick-garland-lame-duck/) objection to the Republican tactic. [QUOTE=CNN] Senate Majority Leader Mitch McConnell and his chief deputy, John Cornyn, both insisted this week that GOP leaders won’t take up President Barack Obama’s choice of Garland in an end-of-year session, no matter what happens in the November elections. “We’ve already made it very clear that a nomination for the Supreme Court by this president will not be filled this year,” McConnell said when asked if he’d take up Garland in a lame-duck session of Congress if Clinton wins. “No,” Cornyn told CNN when asked if there was any possibility the GOP would consider Garland in the lame-duck session. [/QUOTE] ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [January 31, 2017, 8:40pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/445 "2017-01-31T20:40:47Z")
And McCain explicitly said that he would block any and every justice that Clinton proposed (back when it looked like she was going to win). He didn’t pretend to state any reason for it; he just said that he’d block everyone she named. ---
**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:** [January 31, 2017, 8:47pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/446 "2017-01-31T20:47:26Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Actually, I’m focusing on [the Republicans’](http://www.cnn.com/2016/09/13/politics/mitch-mcconnell-merrick-garland-lame-duck/) objection to the Republican tactic. I think it’s impossible to say for sure at this point, but had Clinton won and the senate flipped, I would have expected efforts to confirm Garland before she took office. Yes their stated reasons would preclude that, but I would expect them to reverse themselves for the sake of expediency. I have no evidence to support this belief, though I don’t think it’s unreasonable. ---
**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:** [February 1, 2017, 12:17am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/447 "2017-02-01T00:17:04Z")
Apparently many Democrats in the Senate are thinking along the lines of what I’ve written in recent posts. [Democrats consider backing off big battle over Trump’s Supreme Court pick](http://www.cnn.com/2017/01/30/politics/democrats-supreme-court-battle/) ---
**Author:** ![ThelmaLou](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/thelmalou/32/390_2.png) [@ThelmaLou](https://boards.straightdope.com/u/ThelmaLou)\ **Post date:** [February 1, 2017, 1:06am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/448 "2017-02-01T01:06:45Z")
> [@Fotheringay-Phipps](#): > > Apparently many Democrats in the Senate are thinking along the lines of what I’ve written in recent posts. [Democrats consider backing off big battle over Trump’s Supreme Court pick](http://www.cnn.com/2017/01/30/politics/democrats-supreme-court-battle/) Important to note, for this reason: > [@](#): > > …instead considering delaying that battle for a future nomination that could shift the ideological balance of the court, sources say… There are two justices over 80 and another who is 78, so it’s not unlikely that The Donald will have the opportunity to appoint at least one other one. ---
**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:** [February 1, 2017, 1:54am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/449 "2017-02-01T01:54:12Z")
> [@Fotheringay-Phipps](#): > > Apparently many Democrats in the Senate are thinking along the lines of what I’ve written in recent posts. [Democrats consider backing off big battle over Trump’s Supreme Court pick](http://www.cnn.com/2017/01/30/politics/democrats-supreme-court-battle/) God I hope not. It’d be a massive strategic error. Take advantage of the opportunity for the other party to have to kill the filibuster! ---
**Author:** ![asahi](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asahi/32/8693_2.png) [@asahi](https://boards.straightdope.com/u/asahi)\ **Post date:** [February 1, 2017, 2:45am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/450 "2017-02-01T02:45:15Z")
> [@iiandyiiii](#): > > The Republicans success in '10, '14, and '16 shows us that going all out against almost anyone and anything actually works. The Democrats should emulate that success, especially considering that Trump is much more unpopular than Obama was. Republicans had a congressional majority; democrats do not. ---
**Author:** ![Pearl\_Clutching\_Provocateur](https://avatars.discourse-cdn.com/v4/letter/p/c68b51/32.png) [@Pearl\_Clutching\_Provocateur](https://boards.straightdope.com/u/Pearl_Clutching_Provocateur)\ **Post date:** [February 1, 2017, 3:03am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/451 "2017-02-01T03:03:24Z")
My prediction is that one of the left leaning supreme court judges will fall gravely ill but the Democrats will keep him or her technically alive using Frankenstein-like methods to keep Trump from filling another seat on the court. ---
**Author:** ![Sinaptics](https://avatars.discourse-cdn.com/v4/letter/s/278dde/32.png) [@Sinaptics](https://boards.straightdope.com/u/Sinaptics)\ **Post date:** [February 1, 2017, 3:04am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/452 "2017-02-01T03:04:41Z")
> [@Fotheringay-Phipps](#): > > Apparently many Democrats in the Senate are thinking along the lines of what I’ve written in recent posts. [Democrats consider backing off big battle over Trump’s Supreme Court pick](http://www.cnn.com/2017/01/30/politics/democrats-supreme-court-battle/) I think that’d be a massive blunder. Do you really think that if a liberal justice retires that they’ll nominate a liberal? They’ll appoint another conservative and dare the Democrats to filibuster, exactly like they’re doing now. From the beginning of the article: > [@](#): > > Senate Democrats are weighing whether to avoid an all-out war to block President Donald Trump’s upcoming Supreme Court pick, instead considering delaying that battle for a future nomination that could shift the ideological balance of the court, sources say. This is the nomination that changes the ideological balance. Rolling over now won’t make the opposition any more amenable in the future, based on past behavior. ---
**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:** [February 1, 2017, 3:29am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/453 "2017-02-01T03:29:32Z")
The point is that it’s a replacement for Scalia who was pretty conservative himself. If RBG leaves the court, then replacing her with a conservative would change the balance. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [February 1, 2017, 3:31am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/454 "2017-02-01T03:31:15Z")
> [@ThelmaLou](#): > > Important to note, for this reason: > There are two justices over 80 and another who is 78, so it’s not unlikely that The Donald will have the opportunity to appoint at least one other one. Gorsuch is 49; if confirmed he might sit on the court a long, long time. ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [February 1, 2017, 3:39am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/455 "2017-02-01T03:39:39Z")
> [@Fotheringay-Phipps](#): > > The point is that it’s a replacement for Scalia who was pretty conservative himself. If RBG leaves the court, then replacing her with a conservative would change the balance. Even if Ginsburg were replaced by a Hardiman or Pryor, probably enough Republicans would see it through. Only need 50 out of 52 GOP Senators, and Pence would break a tie. ---
**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:** [February 1, 2017, 3:44am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/456 "2017-02-01T03:44:12Z")
Again, what they’re saying is something along the lines of what I’ve been saying here. If the Democrats decide to filibuster every single Trump nominee, then the Republicans will just do away with the filibuster and the Democrats will not be able to block any of them. If the Democrats are willing to let some pass, then there’s a good chance that enough Republicans will be unwilling to do away with the filibuster in that circumstance that the Democrats could keep it in place. If they keep the filibuster, then they could successfully block _some_ Trump nominees. So the thinking is “if we filibuster now, then the filibuster is lost and the Republicans get to replace Ginsburg with a hard-right justice. If we let this one go, then maybe the filibuster would survive even if we use it for Ginsburg’s replacement”. ---
**Author:** ![DinoR](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dinor/32/2821_2.png) [@DinoR](https://boards.straightdope.com/u/DinoR)\ **Post date:** [February 1, 2017, 4:08am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/457 "2017-02-01T04:08:34Z")
Short of outright killing the filibuster I’ve seen the option of limiting each senator to two speaking periods in a legislative day. The Senate defines those days as not ending till adjournment so they can span days or weeks. That would weaken the filibuster but not kill it outright. The majority party would have to commit to weeks of playing political chicken if they can’t get cloture with that rule in place. Sent from my SPH-L710 using Tapatalk ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [February 1, 2017, 5:43am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/458 "2017-02-01T05:43:49Z")
> [@Pearl\_Clutching\_Provocateur](#): > > My prediction is that one of the left leaning supreme court judges will fall gravely ill but the Democrats will keep him or her technically alive using Frankenstein-like methods to keep Trump from filling another seat on the court. We might see a legal battle whereby Ginsburg, on life support or in a coma, would be declared by Republicans to be incapacitated and hence in need of a SCOTUS replacement, but declared by Democrats to be “irreplaceable until all vital signs are medically gone.” ---
**Author:** ![madsircool](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/madsircool/32/3432_2.png) [@madsircool](https://boards.straightdope.com/u/madsircool)\ **Post date:** [February 1, 2017, 6:09am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/459 "2017-02-01T06:09:18Z")
At present there appears to be no legal way to remove an incapacitated justice > **[Anticipating the Incapacitated Justice](https://www.huffpost.com/entry/anticipating-the-incapaci_b_266179)** > > While it is a disturbing truth that our nation will someday likely confront the tragedy of an incapacitated Supreme Court justice, it is not at all clear which justice that will be. Maybe we need a Chief with a pillow… ---
**Author:** ![Lord\_Feldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lord_feldon/32/341_2.png) [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)\ **Post date:** [February 1, 2017, 6:48am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/460 "2017-02-01T06:48:19Z")
> [@madsircool](#): > > At present there appears to be no legal way to remove an incapacitated justice > > [Anticipating the Incapacitated Justice | HuffPost Latest News](http://m.huffpost.com/us/entry/266179) If there was bipartisan support for removal, an impeachment could be pushed through and dressed up to look like something that isn’t shameful. (For instance, the constitution doesn’t require use of the word “guilty.”) [Previous page](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297.md?page=22) [Next page](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297.md?page=24)