# 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:** 7
**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 30, 2016, 3:09pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/121 "2016-11-30T15:09:46Z")
> [@Fotheringay-Phipps](#): > > ISTM fairly obvious that the Republican line about waiting for the next president was concocted for the purpose of opposing Garland. YMMV. It’s not obvious at all. I give you the benefit of the doubt because I don’t think of you as a hopeless partisan, but you have to overlook an raft of absolute statements like (from Mitch McConnell) “the decision the Senate made weeks ago [to ignore the nomination] remains about a principle, not a person.” ---
**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 30, 2016, 3:18pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/122 "2016-11-30T15:18:09Z")
How do statements like this contradict what I wrote? I’m aware that this is the official Republican line. I’m just saying that this supposed principle was concocted for the purpose of opposing Garland. ---
**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:** [November 30, 2016, 3:22pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/123 "2016-11-30T15:22:37Z")
> [@Budget\_Player\_Cadet](#): > > … > > 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… Be \*very \*careful when invoking the founders before reading history. You might be surprised to see that your assumptions do not hold true. In November of 1828 Andrew Jackson defeated John Quincy Adams in the presidential election. In December 1828 a vacancy on the Supreme Court arose and Adams submitted a nomination. The Senate voted to defer consideration, and never took ti up again. The vacancy was then filled by a Jackson nominee in March of the following year. The Senators at the time include early American notables such as John C Calhoun, Daniel Webster, as well as future presidents Martin Van Buren and John Tyler and William Henry Harrison, and future Vice President William King. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [November 30, 2016, 3:32pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/124 "2016-11-30T15:32:25Z")
> [@iiandyiiii](#): > > Probably not, but I’m open to being persuaded. If I get the right Supreme Court justices, I don’t have to persuade you - your post says whatever I want it to. > [@](#): > > As an example, Shodan, do you think Loving v Virginia was decided correctly? If so, what text from the Constitution was used? We’ve done this one to death. The common law established the definition of marriage as “the union of one man and one woman”. That definition was even cited in the decision in _Loving_. The Lovings were denied the equal protection of that law. The recent gay marriage decision is a good example of judges making up law instead of applying it. The justices “interpreted” a definition of “the union of one man and one woman” as “the union of one man and one woman, or two men, or two women”. That’s not an interpretation - it is making things up. “One man and one woman” doesn’t mean “two men” or “two women”, and saying it does is no more reasonable than for me to say that your post supports the rejection of Garland and an endorsement of the Trump presidency. It’s obviously true that there are gray areas in interpretation. It is not obviously true that therefore any interpretation is as good as any other. Regards, Shodan ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [November 30, 2016, 3:45pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/125 "2016-11-30T15:45:02Z")
> [@Budget\_Player\_Cadet](#): > > No. We can’t. Because, again, there’s a difference between using a broken strategy to win and using a broken strategy to break even. The republicans have held up the supreme court, refusing to even consider _any_ nominee put forward by Obama. They broke with tradition and made it clear that when they hold the senate, democratic presidents won’t get to nominate justices that align with their politics. So now we have a choice: we can either let them get away with that and hope they don’t do it again, or we can do everything in our power to ensure that they _don’t_ get away with that. I think the only acceptable choice is the latter. But you’re not going to break even. You’re going to lose. And in losing, you’re going to destroy one of the last shreds of power the minority party has in the Senate. It’s inaccurate to pretend that the position the Senate Republicans found themselves in this year is the same as the one the Senate Democrats will be in next year. They’re not the same. The Republicans were the Senate majority party and the Democrats will be the Senate minority party. That’s a _critical_ difference, perhaps _the_ critical difference. > [@Really\_Not\_All\_That\_Bright](#): > > So the Democrats are bound by Schumer’s 2007 statement in perpetuity, but Republicans aren’t bound by _multiple_ Senators’ statements… ever? When the Dems have a majority in the Senate (probably not until 2020 at the earliest) they can hold McCain or Cruz or any other Senator accountable for whatever statement they like. Anyways, like I said earlier, I think it was unlikely that the Republicans were never going to appoint a hypothetical President Clinton’s nominee. There was enough division in the caucus that someone she nominated probably would have gotten a hearing, and a vote, and won that vote. It probably would’ve happened over Cruz’ strenuous objections, but, as I noted, we don’t have a Senate majority of 52 Senator Cruz’. ---
**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:** [November 30, 2016, 3:50pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/126 "2016-11-30T15:50:00Z")
> [@Shodan](#): > > We’ve done this one to death. > > The common law established the definition of marriage as “the union of one man and one woman”. That definition was even cited in the decision in _Loving_. The Lovings were denied the equal protection of that law. I agree with you – and that was an interpretation of the Constitution. Every reading is an interpretation of some sort, since “literal” meaning can differ depending on who’s reading it, and what definitions they use, and what inferences to things like common law they use, and the like. > [@](#): > > The recent gay marriage decision is a good example of judges making up law instead of applying it. The justices “interpreted” a definition of “the union of one man and one woman” as “the union of one man and one woman, or two men, or two women”. That’s not an interpretation - it is making things up. “One man and one woman” doesn’t mean “two men” or “two women”, and saying it does is no more reasonable than for me to say that your post supports the rejection of Garland and an endorsement of the Trump presidency. This is one interpretation, but it’s not the only one. You probably don’t agree, but you’re not going to convince me that there’s only one possible interpretation of the Constitution with regards to gay marriage. Even your reading of the majority decision is an interpretation, since they also discussed the rights to “certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs”, and “the right to personal choice regarding marriage is inherent in the concept of individual autonomy” and various other inferences and interpretations of the Constitution. I interpret their majority decision as being a real interpretation of the Constitution, even if it’s not an interpretation that you or Scalia agrees with. I disagree with your interpretation of their decision that it’s not an interpretation of the Constitution at all. > [@](#): > > It’s obviously true that there are gray areas in interpretation. It is not obviously true that therefore any interpretation is as good as any other. I agree – and there are gray areas in determining which interpretation is better than others, and even in determining whether a court’s decision is making stuff up or an actual interpretation of the Constitution. ---
**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 30, 2016, 4:12pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/127 "2016-11-30T16:12:51Z")
> [@iiandyiiii](#): > > As an example, **Shodan** , do you think Loving v Virginia was decided correctly? If so, what text from the Constitution was used? Do you think it was decided correctly and if so what text from the Constitution was used? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 30, 2016, 4:13pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/128 "2016-11-30T16:13:40Z")
> [@jshore](#): > > **Bricker** : Your whole argument relies on a completely binary view of the world. In your bizarro view, either the Senate has to confirm any nominee that meets some minimal qualifications or they have the right to reject any and all nominees for any reason they like, with or without a hearing (including the fact that they don’t like the President who is appointing them). There is apparently no in-between There is not. And the reason is obvious: once you say, “Well, OK, the Senate can reject someone like Bork, because his views are too strict, but not someone like Sotomayor, whose ‘Wise Latina’ ability to inject life experiences into judging is perfectly acceptable!” then you create an ever-tightening ratchet: judges create precedents that normalize the evolving view of the law; lower courts apply them; students learn this and rise to become the next generation of Wise Cultural Group Members with their own plans to shape the law… _all without the text of the law ever changing._ Go ahead: insist that this is fine. I insist it’s fine too, but now my guys are going to do it. That’s always the mark of a fair deal: if you’re on the receiving end instead of the giving end, how do you like it? ---
**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:** [November 30, 2016, 4:15pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/129 "2016-11-30T16:15:49Z")
> [@puddleglum](#): > > Do you think it was decided correctly and if so what text from the Constitution was used? I think it was, and I think the text they used was correct. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 30, 2016, 4:18pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/130 "2016-11-30T16:18:25Z")
> [@John\_Mace](#): > > Would you at least agree that, if #2 is the correct interpretation of the GOP’s position then there is indeed a substantive difference between the Bork situation and the current one? Sure. But honestly, now, if Obama had nominated Neil Gorsuch or William Pryor, you must know that the Senate would (after pinching themselves to ensure this was not a dream) quickly confirmed them. You cannot possibly be trying to convince me that McConnell, with a Clinton presidency looming, would have literally stuck to the rhetoric he offered up. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 30, 2016, 4:19pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/131 "2016-11-30T16:19:37Z")
> [@iiandyiiii](#): > > I think it was, and I think the text they used was correct. What text was that, specifically? ---
**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:** [November 30, 2016, 4:26pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/132 "2016-11-30T16:26:05Z")
> [@Bricker](#): > > What text was that, specifically? You don’t know? 😃 ---
**Author:** ![tim-n-va](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim-n-va/32/3001_2.png) [@tim-n-va](https://boards.straightdope.com/u/tim-n-va)\ **Post date:** [November 30, 2016, 4:31pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/133 "2016-11-30T16:31:55Z")
When I was watching TV and heard that Scalia had died, they followed that with a statement from McConnell expressive sympathy and saying that no nomination should be made until then next president was elected. The Garland was never considered by the senate. The “let the people decide” is laughable because three years before the people had decided that Obama would be president until Jan 2017. They cited out of context posturing statements by Biden as the “Biden Rule” as if it were something real. Maybe they thought a black president only gets 7/8 of his time. There is nothing that indicates it was based on merit. If they wanted revenge for Bork, there were plenty of chances with other nominations so throw out that red herring. ---
**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:** [November 30, 2016, 4:32pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/134 "2016-11-30T16:32:10Z")
> [@Fotheringay-Phipps](#): > > I suppose the Republicans should have voted against any nominee not named Bork … Bork got more than hearings. He got a vote. He was voted down on a bipartisan basis 58-42. > **[Robert Bork Supreme Court nomination](https://en.wikipedia.org/wiki/Robert_Bork_Supreme_Court_nomination)** > > On July 1, 1987, President Ronald Reagan nominated Judge Robert Bork for Associate Justice of the Supreme Court of the United States, to succeed Lewis F. Powell Jr., who had earlier announced his retirement. At the time of his nomination, Bork was a judge on the United States Court of Appeals for the District of Columbia Circuit, a position to which he had been appointed by President Reagan in 1982. > Bork's nomination precipitated contentious debate. Opposition to his nomination centered on h... However it has been noted that “[t]he Bork fight, in some ways, was the beginning of the end of civil discourse in politics… The anger between Democrats and Republicans, the unwillingness to work together, the profound mistrust–the line from Bork to today’s ugly politics is a straight one.” Democrats threw the first Stone but the Republicans started taking hostages. ---
**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:** [November 30, 2016, 4:34pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/135 "2016-11-30T16:34:26Z")
> [@Chronos](#): > > What we need is a Constitutional amendment to institute a system for putting people on the Supreme Court. Yes, I said “institute”, not “reform” or “change”, because what we have now doesn’t work _at all_ unless both sides play fair. > > Right now, we’re worried about who Trump will nominate to fill Scalia’s former seat. That’s the wrong worry. What we should be worried about is Trump nominating _ten_ justices to fill Scalia’s seat. The Republicans have been laying the groundwork now for a while, by (correctly) pointing out that the Constitution does not set the number of justices at nine: That’s just the result of an ordinary law, that Congress can change all by itself. > > [This has been tried before](https://en.wikipedia.org/wiki/Judicial_Procedures_Reform_Bill_of_1937), but when FDR tried it, he was stopped by Congress. Would this Congress do likewise? > > EDIT: **Shodan** , by what possible argument can you claim that Democrats lost the 2012 election? I’m not Shodan but they lost the 2014 election when they failed to garner a majority in the senate. ---
**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:** [November 30, 2016, 4:36pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/136 "2016-11-30T16:36:32Z")
> [@Bricker](#): > > And as the judiciary leans right after Trump’s administration, I am certain you will be nonplussed at the power courts have to ignore the written law and substitute their own judgement about wise social policy. You will have been a fan of that power when it aids your desired outcome and then shocked, shocked to discover that gambling is going on here! I think that’s already happened. See \*Shelby County v. Holder \* ---
**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:** [November 30, 2016, 4:37pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/137 "2016-11-30T16:37:36Z")
> [@Chronos](#): > > What we need is a Constitutional amendment to institute a system for putting people on the Supreme Court. Yes, I said “institute”, not “reform” or “change”, because what we have now doesn’t work _at all_ unless both sides play fair. > > Right now, we’re worried about who Trump will nominate to fill Scalia’s former seat. That’s the wrong worry. What we should be worried about is Trump nominating _ten_ justices to fill Scalia’s seat. Then the next time, the Democrats put in 20, then 30 then 50. Then every supreme court case becomes a referendum because we will all become supreme court justices upon reaching majority or naturalization. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [November 30, 2016, 4:52pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/138 "2016-11-30T16:52:06Z")
> [@tim-n-va](#): > > If they wanted revenge for Bork, there were plenty of chances with other nominations so throw out that red herring. Have you not heard that revenge is a dish best served cold? ---
**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:** [November 30, 2016, 4:53pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/139 "2016-11-30T16:53:34Z")
> [@astorian](#): > > I have no problem with Senate Democrats putting up a fight. They have that right. I just won’t let them pretend they didn’t start this fight. > > By rejecting the eminently qualified Robert Bork, the Democrats started a fight they now pretend they never wanted. So the senate cannot reject a nominee because they are too radical. Robert Bork was pretty radical and controversial See Saturday night massacre see civil rights act see voting rights act see roe v wade ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 30, 2016, 5:10pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/140 "2016-11-30T17:10:13Z")
> [@Damuri\_Ajashi](#): > > So the senate cannot reject a nominee because they are too radical. Robert Bork was pretty radical and controversial > > See Saturday night massacre > see civil rights act > see voting rights act > see roe v wade Then so was Garland. See non-textualist. :rolleyes: [Previous page](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297.md?page=6) [Next page](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297.md?page=8)