# 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:** 8
**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, 5:45pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/141 "2016-11-30T17:45:37Z")
BTW, FWIW, Joe Biden expressed some (qualified) support for Bork as SCJ prior to leading the fight against him as JC Chairman. Also, Bork was unanimously approved as Appeals Court Judge, prior to being uncovered as an out-of-the-mainstream extremist when nominated to the SC. > [@Fotheringay-Phipps](#): > > (IIRC, one of the then-sitting liberal SC justices said that he himself wasn’t qualified to sit on a SC that Bork was unqualified for.) I have to correct this - apparently what I’m remembering was actually said by [former CJ Warren Burger](http://articles.latimes.com/1987-09-23/news/mn-6415_1_judge-bork) who said this. ---
**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, 6:35pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/142 "2016-11-30T18:35:32Z")
> [@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. 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) …” > > I don’t see any reason to believe that if there’s a Republican-held Senate and Democrat President in 2021, or 2025, or 2029, that the Republicans would refuse to hold a vote on every SCOTUS nominee that President made. > > I’ll admit though, I’m open to being persuaded on this point. If someone has some evidence that suggests that’s the plan forevermore, I’d like to see it. So, where do they draw thee line? The last year of office? The year before the election? The last 2 lame duck years? Why not immediately following the first 100 day honeymoon period, if they get one? Its not principled. Obama wasn’t elected president from 2007 to 2015. He was elected president from 2009 to 2016. Unless you are willing to see a situation where supreme court justices do not get confirmed unless one party holds both the senate and the white house, this arbitrary and historically unique position does not seem to be within the original intent of the founding fathers. It seems like rules skirting. ---
**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, 6:41pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/143 "2016-11-30T18:41:56Z")
> [@HurricaneDitka](#): > > The American Bar Association rated Bork “well-qualified”. Isn’t that pretty much the standard for whether a nominee is qualified or not? It’s certainly the primary one I heard about when [Sotomayor](http://www.cnn.com/2009/POLITICS/07/07/sotomayor.aba/index.html?iref=nextin) and [Kagan](http://www.cnn.com/2010/POLITICS/06/25/kagan.hearings.preparation/index.html?hpt=Sbin) were nominees. Bork was controversial and radical on a number of fronts. Its not like they were able to stop the Thomas or anyone else after him. Bork was especially controversial. Comparing Bork to Garland is like comparing Ted Cruz to Mitt Romney. ---
**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, 6:47pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/144 "2016-11-30T18:47:41Z")
> [@Damuri\_Ajashi](#): > > So, where do they draw thee line? The last year of office? The year before the election? The last 2 lame duck years? Why not immediately following the first 100 day honeymoon period, if they get one? 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. > [@Damuri\_Ajashi](#): > > Its not principled. 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. > [@Damuri\_Ajashi](#): > > …this arbitrary and historically unique position does not seem to be within the original intent of the founding fathers. I think Iggy did a wonderful job in post #123 showing that you’re wrong on this point. ---
**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, 6:54pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/145 "2016-11-30T18:54:05Z")
> [@Damuri\_Ajashi](#): > > Bork was controversial and radical on a number of fronts. Its not like they were able to stop the Thomas or anyone else after him. Bork was especially controversial. Comparing Bork to Garland is like comparing Ted Cruz to Mitt Romney. I disagree with this. The result of the Bork loss was that Republicans had to resort to nominating either middle-of-the-road moderates (e.g. Kennedy) or unknown quantities (e.g. Souter). Both Roberts and Alito were confirmed by Republican majorities in the Senate. Thomas barely squeaked by with one vote to spare, and he had the advantage of being black. You’re wrong about this. Bork set a precedent that has endured ever since. ---
**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 30, 2016, 7:30pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/146 "2016-11-30T19:30:20Z")
> [@Damuri\_Ajashi](#): > > So, where do they draw thee line? The last year of office? The year before the election? The last 2 lame duck years? Why not immediately following the first 100 day honeymoon period, if they get one? It’s a political question, not a constitutional one. They draw the line wherever their constituents allow. ---
**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, 7:36pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/147 "2016-11-30T19:36:09Z")
> [@Fotheringay-Phipps](#): > > BTW, FWIW, Joe Biden expressed some (qualified) support for Bork as SCJ prior to leading the fight against him as JC Chairman. > > Also, Bork was unanimously approved as Appeals Court Judge, prior to being uncovered as an out-of-the-mainstream extremist when nominated to the SC. Correct – which really ought to shame commentators here into a re-examination of the claim that Bork’s judicial bona fides were the problem. He was being punished for his acts as Soliciter General / Acting Attorney General. As the elder Skywalker might say, “Search your feelings. You know this to be true.” ---
**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, 7:38pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/148 "2016-11-30T19:38:44Z")
> [@Damuri\_Ajashi](#): > > So, where do they draw thee line? The last year of office? The year before the election? The last 2 lame duck years? Why not immediately following the first 100 day honeymoon period, if they get one? > > Its not principled. Obama wasn’t elected president from 2007 to 2015. He was elected president from 2009 to 2016. Unless you are willing to see a situation where supreme court justices do not get confirmed unless one party holds both the senate and the white house, this arbitrary and historically unique position does not seem to be within the original intent of the founding fathers. It seems like rules skirting. So was Bork’s treatment. But what you’re asking for is the power to skirt only the rules you wish to skirt, when you wish to skirt them, 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. Listen carefully, and repeat after me: NO. Not gonna happen. ---
**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, 7:39pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/149 "2016-11-30T19:39:50Z")
> [@Bricker](#): > > Correct – which really ought to shame commentators here into a re-examination of the claim that Bork’s judicial bona fides were the problem. > > He was being punished for his acts as Soliciter General / Acting Attorney General. > > As the elder Skywalker might say, “Search your feelings. You know this to be true.” I don’t agree. He was “punished” because his appointment to replace Powell would significantly change the ideological makeup of the SC. ---
**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, 7:45pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/150 "2016-11-30T19:45:30Z")
> [@Fotheringay-Phipps](#): > > I don’t agree. He was “punished” because his appointment to replace Powell would significantly change the ideological makeup of the SC. 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. 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. Few topics make me as furious as the rejection of Bork, except the doe-eyed mewling that now accompanies the return of the serve. ---
**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, 7:50pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/151 "2016-11-30T19:50:55Z")
> [@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. > > 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. > > Few topics make me as furious as the rejection of Bork, except the doe-eyed mewling that now accompanies the return of the serve. I don’t disagree with your general point (I’m the guy who originally raised the Bork issue in this thread). I was just disagreeing with the specific claim that Bork was about the Nixon actions. It was about ideology. IMO it’s an inevitable result of the Warren era. Once liberals came to rely more and more on the courts to make sweeping changes in society, the ideological makeup of the courts became a much bigger factor than it had historically been. But the first big break with tradition in this regard was the Bork nomination, and it’s been that way ever since. ---
**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, 7:51pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/152 "2016-11-30T19:51:13Z")
> [@ISiddiqui](#): > > Obviously it was 1803. 😉 > **[Marbury v. Madison](https://en.wikipedia.org/wiki/Marbury_v._Madison)** > > Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), was a landmark decision of the U.S. Supreme Court that established the principle of judicial review, meaning that American courts have the power to strike down laws and statutes they find to violate the Constitution of the United States. Decided in 1803, Marbury is regarded as the single most important decision in American constitutional law. It established that the U.S. Constitution is actual law, not just a statement of political principle T... ---
**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, 7:53pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/153 "2016-11-30T19:53:24Z")
I still don’t see how not holding hearings or considering a nominee is the same as holding hearings and considering but rejecting a nominee. I get that Bork’s treatment may have been unprecedented, but it also seems like not holding hearings and refusing to consider a nominee at all is unprecedented – two different unprecedented things. ---
**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, 7:55pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/154 "2016-11-30T19:55:27Z")
> [@Bricker](#): > > Few topics make me as furious as the rejection of Bork, except the doe-eyed mewling that now accompanies the return of the serve. Bricker, this might just be my favorite thing you’ve ever written. ---
**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, 7:57pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/155 "2016-11-30T19:57:08Z")
> [@iiandyiiii](#): > > I still don’t see how not holding hearings or considering a nominee is the same as holding hearings and considering but rejecting a nominee. I get that Bork’s treatment may have been unprecedented, but it also seems like not holding hearings and refusing to consider a nominee at all is unprecedented – two different unprecedented things. 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”. ---
**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:** [November 30, 2016, 8:00pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/156 "2016-11-30T20:00:30Z")
> [@iiandyiiii](#): > > I still don’t see how not holding hearings or considering a nominee is the same as holding hearings and considering but rejecting a nominee. I get that Bork’s treatment may have been unprecedented, but it also seems like not holding hearings and refusing to consider a nominee at all is unprecedented – two different unprecedented things. 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. ---
**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, 8:05pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/157 "2016-11-30T20:05:27Z")
> [@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”. This doesn’t dispute my point. As far as the filibuster, I hope its eliminated (or returned to the talking filibuster) for everything, even if it helps the Republicans pass bills in the short term. ---
**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, 8:08pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/158 "2016-11-30T20:08:09Z")
> [@iiandyiiii](#): > > As far as the filibuster, I hope its eliminated (or returned to the talking filibuster) for everything, even if it helps the Republicans pass bills in the short term. 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. ---
**Author:** ![jshore](https://avatars.discourse-cdn.com/v4/letter/j/b5e925/32.png) [@jshore](https://boards.straightdope.com/u/jshore)\ **Post date:** [November 30, 2016, 8:11pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/159 "2016-11-30T20:11:18Z")
> [@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. That still would have been much better because the American people would have gotten to see what the person was like and they might have concluded, “Gee…That Garland seemed like a very reasonable fellow; I don’t understand why the Republicans claimed all those things about him that didn’t seem to have any basis in reality.” Forcing the Senators to go on record as opposing a nominee and why is much better than just pretending that the President has no Constitutional right and obligation to nominate a Supreme Court justice in an election year. ---
**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, 8:11pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/160 "2016-11-30T20:11:25Z")
> [@BigT](#): > > He didn’t say to only confirm Garland. He said to refuse to confirm anyone until Garland has his hearing. They tried an end run around the rules, and the point is to make this not acceptable. Once that is no longer acceptable, we are back to normalcy, where nominees get voted on. > > It’s not a bad idea, but I agree with those who say it’s not one we can do. Because there is the very real risk that they will amend the rules to disallow filibusters on Supreme Court nominees. We need to keep them far enough away from that trigger so that we can filibuster if one of the other judges dies. They will abolish the filibuster as soon as it becomes expedient to do so. The only way they save the filibuster is if some Republicans defect. > [@](#): > > This is not a good place to provide proper punishment for their attempts to undermine the system. Not yet. Not when so many fundamental rights could be on the line in the near future. It is not worth condemning the less fortunate to punish the wrongdoers. > > We are the opposition party. We have to be strategic. What fundamental rights do you think swing in the balance that can be saved by a more conciliatory Democratic senate minority? Do you think even for a minute that Republicans will not blow through the filibuster to nominate a pro-life judge regardless of how well the Democrats behave? After all they are replacing Scalia and in their mind they get to nominate someone at the same place on the political spectrum. When Ginsberg, or Kennedy or Breyer croak, they will suddenly forget the principle of replacing justices with similar justices. [Previous page](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297.md?page=7) [Next page](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297.md?page=9)