# 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:** 4
**Author:** ![puddleglum](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/puddleglum/32/137_2.png) [@puddleglum](https://boards.straightdope.com/u/puddleglum)\ **Post date:** [November 29, 2016, 4:02pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/61 "2016-11-29T16:02:07Z")
> [@Fiveyearlurker](#): > > So, it’s fine if the Democratic senators take the term “advise and consent” to mean, “We advise you to choose Garland, or else no consent.” They won their elections too. That is fine. Then the Republicans should outvote them and install the new pick. ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [November 29, 2016, 5:56pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/62 "2016-11-29T17:56:13Z")
Meh. The President has the power to appoint, with the advice and consent of the Senate. The Senate has chosen to withhold their advice, so they should be deemed to have consented to the appointment. No hiding the ball, no dragging feet. Participate, or consent by your silence. The way it oughtta be. ---
**Author:** ![Fiveyearlurker](https://avatars.discourse-cdn.com/v4/letter/f/da6949/32.png) [@Fiveyearlurker](https://boards.straightdope.com/u/Fiveyearlurker)\ **Post date:** [November 29, 2016, 6:02pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/63 "2016-11-29T18:02:52Z")
> [@HurricaneDitka](#): > > If RBG dies in 2019, it’s very likely that Republicans will still hold the Senate, so I doubt it’ll be an issue that year. If, by some miracle, the Dems took control of the Senate in 2018, it wouldn’t surprise me at all if they refused to hold a hearing for a Trump nominee. But we aren’t supposed to nominate a Supreme Court justice in an election year. Or are we now openly acknowledging that was just bullshit? ---
**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:** [November 29, 2016, 6:06pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/64 "2016-11-29T18:06:06Z")
In the short term, Obama should do what he should have done immediately: Have the President of the Senate call for a straight up-or-down vote on Garland, and hold everyone accountable for their vote. It still won’t matter in the long term, though, because there’s no tactic stopping the Republicans from nominating and confirming as many justices as they want. ---
**Author:** ![Bridget\_Burke](https://avatars.discourse-cdn.com/v4/letter/b/7cd45c/32.png) [@Bridget\_Burke](https://boards.straightdope.com/u/Bridget_Burke)\ **Post date:** [November 29, 2016, 6:29pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/65 "2016-11-29T18:29:11Z")
> [@Chronos](#): > > In the short term, Obama should do what he should have done immediately: Have the President of the Senate call for a straight up-or-down vote on Garland, and hold everyone accountable for their vote. > > It still won’t matter in the long term, though, because there’s no tactic stopping the Republicans from nominating and confirming as many justices as they want. Well, the Republicans will be limited to filling vacancies caused by death or retirement. So they’ve got the Scalia spot to fill. Realistically, they will probably have more “opportunities”–but not “as many as they want.” ---
**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:** [November 29, 2016, 6:32pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/66 "2016-11-29T18:32:01Z")
Unless they decide to increase the number of SCOTUS justices. ---
**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:** [November 29, 2016, 6:40pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/67 "2016-11-29T18:40:03Z")
Or declaring Justice-hunting season open. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 29, 2016, 6:46pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/68 "2016-11-29T18:46:13Z")
> [@BigT](#): > > They tried an end run around the rules, and the point is to make this not acceptable. I thought you said you care about getting the right result, with rules being secondary. Presumably, so do the Republican Senators, with the obvious difference that they don’t share your vision of what the right result is. ---
**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:** [November 29, 2016, 6:47pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/69 "2016-11-29T18:47:03Z")
> [@jshore](#): > > So, is the Senate supposed to automatically approve anyone given a “well-qualifed” rating by the ABA? Is Bork the first person to get that rating that was rejected? (I honestly don’t know the answer to that 2nd question.) The ABA does not take political considerations into account, at least according to its own rating criteria. It considers only competence, integrity and judicial temperament. Its representatives make very clear in its reports to the Senate Judiciary Committee that a well-qualified rating is not an endorsement or a suggestion that the Senate should vote to confirm. > [@HurricaneDitka](#): > > No to the first (I didn’t make that claim) and I don’t know either to the second. The ABA rated Clement Haynsworth as well-qualified when he was nominated by Nixon in 1969, and the Senate voted him down. Interestingly, Haynsworth and Bork are similar in that neither received a unanimous well-qualified rating (which is unusual). 4 ABA committee members voted against Bork because he openly criticized prior SCOTUS opinions in public. Haynsworth was downvoted because he refused to recuse himself in cases where he had a conflict of interest. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 29, 2016, 6:48pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/70 "2016-11-29T18:48:15Z")
> [@Max\_Torque](#): > > Meh. The President has the power to appoint, with the advice and consent of the Senate. The Senate has chosen to withhold their advice, so they should be deemed to have consented to the appointment. “Consent,” is affirmative. That’s simply not going to happen. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [November 29, 2016, 7:15pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/71 "2016-11-29T19:15:23Z")
> [@Max\_Torque](#): > > Meh. The President has the power to appoint, with the advice and consent of the Senate. The Senate has chosen to withhold their advice, so they should be deemed to have consented to the appointment. > > No hiding the ball, no dragging feet. Participate, or consent by your silence. The way it oughtta be. Perhaps that’s the way you’d like it to be, but that’s not the way it is. This President already tried the “deeming” Senate actions once, and [it didn’t work out for him](https://en.wikipedia.org/wiki/NLRB_v._Noel_Canning). It’s the Senate that gets to decide what constitutes a recess of the Senate and what constitutes “advise and consent” to a nominee, not the President. > [@Fiveyearlurker](#): > > But we aren’t supposed to nominate a Supreme Court justice in an election year. Or are we now openly acknowledging that was just bullshit? Oh, the President can nominate whomever s/he likes. The “rule”, since about 2007, seems to be that when the opposing party controls the Senate in the last year or two of a President’s term, then that nominee won’t get confirmed. I think I’ll call it the “Schumer rule”. ---
**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:** [November 29, 2016, 7:46pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/72 "2016-11-29T19:46:18Z")
What example are you thinking of in 2007? > [@](#): > > Quoth **Bridget Burke** : > > Well, the Republicans will be limited to filling vacancies caused by death or retirement. That’s the point-- They’re _not_ limited by that. The new Republican congress could, if they chose, pass a law setting the number of justices at 19, and then Trump could, if he chose, nominate ten Republican yes-men, and then the Senate could choose to confirm all of them. Presto, instant Supreme Court majority. ---
**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:** [November 29, 2016, 7:46pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/73 "2016-11-29T19:46:32Z")
> [@](#): > > Oh, the President can nominate whomever s/he likes. The “rule”, since about 2007, seems to be that when the opposing party controls the Senate in the last year or two of a President’s term, then that nominee won’t get confirmed. I think I’ll call it the “Schumer rule”. Really? Can you identify any other SCOTUS nominee who was not confirmed - let alone considered - because of that “rule”? ---
**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:** [November 29, 2016, 7:50pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/74 "2016-11-29T19:50:56Z")
> [@Really\_Not\_All\_That\_Bright](#): > > The ABA does not take political considerations into account, at least according to its own rating criteria. It considers only competence, integrity and judicial temperament. Emphasis on “according to its own rating criteria”. It’s pretty well known that the ABA is more hostile to conservatives than to liberals. Also, that lawyers as a group tend to be liberals, a fact which is undoubtedly related. ---
**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:** [November 29, 2016, 7:54pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/75 "2016-11-29T19:54:12Z")
I’m not sure what point you think you’re making that is inconsistent with what I posted. ---
**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:** [November 29, 2016, 7:56pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/76 "2016-11-29T19:56:41Z")
It didn’t contradict what you posted. But it’s worth noting that the “according to its own rating criteria” is a very relevant qualifier. [It becomes relevant, for example, when you then point out that Bork did not have a unanimous rating.] ---
**Author:** ![Budget\_Player\_Cadet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/budget_player_cadet/32/205_2.png) [@Budget\_Player\_Cadet](https://boards.straightdope.com/u/Budget_Player_Cadet)\ **Post date:** [November 29, 2016, 9:09pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/77 "2016-11-29T21:09:23Z")
The motivated reasoning in this thread is beyond bizarre. Let’s be perfectly clear on what happened here. The Republican party made an end-run around the independent judicative. They took an eminently qualified supreme court nominee and refused to even hold a hearing on him. They didn’t say, “We reject this nominee” (because if they had, Obama could have nominated someone else), they flat-out said, “We’re not going to accept _any_ democratic nominee”. [Some made it quite clear that this would be the case even if Clinton won the election](http://www.npr.org/2016/10/17/498328520/sen-mccain-says-republicans-will-block-all-court-nominations-if-clinton-wins). They were willing to stonewall as long as possible to ensure that Scalia’s seat didn’t go to a democratic nominee. _AND IT WORKED._ The republicans essentially gamed the system, knowing that as long as they held the senate, they could refuse any nominee whose politics they didn’t like and hold out for a president who would give them what they wanted. Does _anyone_ think this is how the judicial is supposed to work? How the founders intended it? Or, failing that, anything _resembling_ a rational way to go about governance? In a system that presumes consent and working together, this is a blatant power grab at the expense of the judiciary. No, this is _not_ comparable to Bork, and if you think that’s the case, you’re woefully ignorant of history. Bork was rejected for being a hardline ideologue with some rather batty ideas. The response from the democrats was not “There are enough conservatives on the court”, it was, “This man is not acceptable for the supreme court, try again”. When Reagan _did_ try again, the nominee was accepted _unanimously_. How is this in any way analogous to Merrick Garland? Obama has been told in no uncertain terms that he doesn’t _get_ to nominate someone to that seat - and had Clinton won, she was facing the exact same message. > [@Shodan](#): > > And the idea that the Democrats shouldn’t consider any nominee except Garland means that the comparison is quite apt. > > Regards, > Shodan No, it _isn’t_. It’s called game theory. Republicans have essentially found a game-breaking strategy that is extremely powerful, and also _really_ bad for our democracy. The democrats need to call their shit by using it right back until everyone agrees that this is a fucking stupid thing to do, and _doesn’t do it any more_. You are essentially proposing that we respond to republicans _hijacking the supreme court nomination process for partisan gain_ by giving them exactly what they want. That’s not okay. That’s not even _close_ to okay. We either play by the rules… or we don’t. If the republican party wants to play [Street Fighter 2 Turbo with Akuma](http://wiki.shoryuken.com/Akuma_(ST)#Tournament_Illegality_and_Etiquette), and we can’t stop them, then what choice do we have but to use a similarly dirty tactic until they relent, realize they’re ruining the game (in this analogy: the American system of government), and fucking _stop_? It’s basic game theory. Unless we give them a reason not to abuse this stupidly strong tactic, they’re going to keep doing it. And that’s not okay, because this tactic basically ensures that they “win” the judicial until we start using it too, at which point the judicial _breaks_ and ceases to function. One might _hope_ that that might snap them out of it, but as you’ve so gladly shown here, most people will miss the nuance of “they forced our hand by abusing this tactic”. > [@HurricaneDitka](#): > > DrCube and FiveYearLurker seem to suggest that a Republican-controlled Senate will never again confirm a Democratic president’s nominee. I haven’t seen evidence that supports that belief. [http://www.politico.com/story/2016/10/cruz-supreme-court-blockade-230363](http://www.politico.com/story/2016/10/cruz-supreme-court-blockade-230363) > **[Sen. McCain Says Republicans Will Block All Court Nominations If Clinton Wins](https://www.npr.org/2016/10/17/498328520/sen-mccain-says-republicans-will-block-all-court-nominations-if-clinton-wins)** > > The Supreme Court is already short one justice because Republicans refuse to consider President Obama's nominee. Two sitting judges are in their 80s, so additional vacancies are likely. They flat-out _said it_. > [@](#): > > This year McConnell chose not to hold hearings on Garland because it was so close to the end of the current President’s term. Obama is a lame-duck President (of the opposing party). He nominated Garland on March 16th, eight months before the election. The (relative) closeness to the next election was a huge factor in the SCOTUS hijinks the Senate played this year, just like it was a factor back in 2007 when Senator Schumer said, “… [We should not confirm any Bush nominee to the Supreme Court](http://www.washingtonexaminer.com/schumer-in-2007-dont-confirm-any-bush-supreme-court-nominee/article/2583283) …” Schumer was objecting to the misleading nature of the Robert and Alito nominations, and how they had overturned so much jurisprudence. He was not saying, “Bush is about to leave office, he shouldn’t get another nominee”. His objection was to the radical nature of Bush’s nominees. We _know_ this isn’t the case with Merrick Garland thanks to the various statements on record of various republicans who refused to give him a hearing. But even if he was, guess what: he was wrong then, and republicans are doubly wrong now. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [November 29, 2016, 9:36pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/78 "2016-11-29T21:36:40Z")
> [@Chronos](#): > > What example are you thinking of in 2007? I was referring to soon-to-be-Minority-Leader-Schumer saying “[We should not confirm any Bush nominee to the Supreme Court, except in extraordinary circumstances.](http://www.washingtonexaminer.com/schumer-in-2007-dont-confirm-any-bush-supreme-court-nominee/article/2583283)” He never got the chance to put his position into action because there weren’t any further SCOTUS vacancies under Bush, but he can FOAD if he thinks I’m going to forget his position in 2007 as soon as it became inconvenient for him in 2016. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [November 29, 2016, 9:48pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/79 "2016-11-29T21:48:37Z")
> [@Budget\_Player\_Cadet](#): > > [http://www.politico.com/story/2016/10/cruz-supreme-court-blockade-230363](http://www.politico.com/story/2016/10/cruz-supreme-court-blockade-230363) > [Sen. McCain Says Republicans Will Block All Court Nominations If Clinton Wins : NPR](http://www.npr.org/2016/10/17/498328520/sen-mccain-says-republicans-will-block-all-court-nominations-if-clinton-wins) > > They flat-out _said it_. If the Senate had 52 Senator Cruz’ in it, maybe they would. Unfortunately, we have senators with last names like Graham and Collins. McCain seems to have backtracked from his earlier position. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [November 29, 2016, 9:55pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/80 "2016-11-29T21:55:29Z")
> [@Budget\_Player\_Cadet](#): > > But even if he was, guess what: he was wrong then, and republicans are doubly wrong now. So can you and I agree that Fiveyearlurker’s strategy of blocking any and all Trump nominees not named Garland would be triply-wrong? Look, Schumer and the Senate Dems probably have an excellent chance to _influence_ Trump’s SCOTUS nominee. If they took a hard look at the list of 21 that he put out and said, “Hey, look, President Trump, I know you’ve got this list of 21 names, but these 4 or 5 are really far out of the mainstream, and picking one of them will lead us to filibuster, so why don’t you pick one of the other 16 or so” or even “hey, we looked at your 21 names and we like these 3 the best, and promise not to filibuster if it’s one of them”, they might just get one of their more tolerable ones. If they rage and say “F IT ALL, NONE OF THESE ARE ACCEPTABLE, FILIBUSTER ALL TEH THINGS!!!”, then the Republicans are probably just going to nuke the filibuster. [Previous page](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297.md?page=3) [Next page](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297.md?page=5)