# 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:** 9
**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, 8:13pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/161 "2016-11-30T20:13:30Z")
> [@jshore](#): > > So, is the Senate supposed to automatically approve anyone given a “well-qualifed” rating by the ABA? Yes, the constitution requires them to delegate their advice and consent power to the ABA. ---
**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, 8:13pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/162 "2016-11-30T20:13:53Z")
> [@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. It worked well when it was used only when you felt extremely strongly that the bill / nominee was a horribly bad one and were actually willing to expend effort to keep the filibuster going. Once the Republicans made it that one automatically needed 60 votes to approve anything and there was no effort involved in sustaining it, it kind of became a little ridiculous. ---
**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, 8:14pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/163 "2016-11-30T20:14:21Z")
> [@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. The current filibuster rule means that 60 votes is needed for anything to pass, which pretty much makes obstruction the norm. I would like to see bills passed so the country can see what happens when the party in power gets what they want, unless there is strong enough opposition to do and maintain a talking filibuster (which should be _hard_, not easy, to do). ---
**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, 8:16pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/164 "2016-11-30T20:16:30Z")
> [@Damuri\_Ajashi](#): > > 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. 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. ---
**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, 8:19pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/165 "2016-11-30T20:19:08Z")
> [@HurricaneDitka](#): > > 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. > > 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”. What nominee didn’t get a hearing and a vote in 2007? ---
**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 30, 2016, 8:20pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/166 "2016-11-30T20:20:25Z")
> [@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. Question. If someone is a qualified, intelligent, constitution-minded person, is there _any_ opinion that person holds, legal or otherwise, that could convince you that maybe the senate would be okay voting against that person? Like, say, maybe they believe African-Americans are subhuman. Would you consider the senate unreasonable for saying, “We don’t want this person as a member of the supreme court, we will not consent to him”? Would you consider that equally “precedent-setting”? > [@](#): > > Few topics make me as furious as the rejection of Bork, except the doe-eyed mewling that now accompanies the return of the serve. If you think that the rejection of a moderate with bipartisan support with the explicit, stated goal of preventing a president from making _any_ nomination whatsoever is a “return of the serve” of blocking Robert “Poll Tax was no big deal” Bork, then I pray that I am never unfortunate enough to fall under your legal counsel. ---
**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, 8:21pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/167 "2016-11-30T20:21:55Z")
> [@iiandyiiii](#): > > This doesn’t dispute my point. Then I have no idea what your point was. > [@](#): > > 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. As I’ve noted elsewhere, there’s no advantage in enforcing the “talking filibuster”, and it’s a lot easier on the minority (as long as it’s not just one or two guys) than the majority (due to quorum rules). > [@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 couldn’t say for sure, and it would probably depend on who Trump nominates. But that argument is over-rated. The Democrats thought they could use it against vulnerable Republicans in 2016 and it didn’t work then either. ---
**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, 8:24pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/168 "2016-11-30T20:24:04Z")
> [@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 there is a difference, but it’s largely one of accountability. The Democrats took a stand that they backed up with votes, creating a record that a future challenger could use against each senator. The refusal to even have a vote creates a safer harbor, since each senator is immune from the specific charge that he downvoted the nominee. But this is a minor difference, in my view, since every senator is still vulnerable to the imputation that he was part of the rejection scheme. So it’s a difference, but a small one. ---
**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, 8:24pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/169 "2016-11-30T20:24:10Z")
> [@Fotheringay-Phipps](#): > > 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. The ABA and lawyers tend to be liberal in the same way that facts tend to be liberal. ---
**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, 8:24pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/170 "2016-11-30T20:24:43Z")
> [@Fotheringay-Phipps](#): > > As I’ve noted elsewhere, there’s no advantage in enforcing the “talking filibuster”, and it’s a lot easier on the minority (as long as it’s not just one or two guys) than the majority (due to quorum rules). I don’t understand what you’re saying – are you saying that it’s easier for the minority to stop something with the talking filibuster than with the current rule? If so, I don’t understand how – the talking filibuster requires actual effort, while the current rule just requires 41 Senators to say no, unless I don’t understand it. ---
**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, 8:26pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/171 "2016-11-30T20:26:03Z")
> [@Bricker](#): > > He was being punished for his acts as Soliciter General / Acting Attorney General. > [@Fotheringay-Phipps](#): > > I don’t agree. He was “punished” because his appointment to replace Powell would significantly change the ideological makeup of the SC. Well, once you Bork apologists agree on the real (completely obvious to anyone if they are honest with themselves) reason why he was “punished”, please be sure to let us know! We await your pronouncements of The Truth with baited breath! I know that I personally factored the solicitor general thing in as a rather minor factor that made me worry of his judgement and partisanship, partly because his reason why he chose to do it did not sound totally unreasonable to me. I was way more worried by his legal views that combined extreme libertarian views on economic issues with extreme authoritarian views on personal and civil rights. And, no, I don’t think you can magically discount the God-awful screed he wrote later…I think that God-awful screed lays bare how his judicial philosophy was driven by his extremist ideological views and not by any higher principles. I mean at least Scalia has some judicial principles that cause him to occasionally luck into the correct decision, as he did on flag burning for example. And, Roberts has some judicial principles that cause him to occasionally luck into the correct decision, as he did on the Affordable Care Act. I never heard Bork have any coherent philosophy other than the Republican combination of libertarianism on economy and authoritarianism on personal libertaries taken to the Nth degree. The guy was fucking scary. ---
**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, 8:29pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/172 "2016-11-30T20:29:35Z")
> [@jshore](#): > > Once the Republicans made it that one automatically needed 60 votes to approve anything and there was no effort involved in sustaining it, it kind of became a little ridiculous. Huh? I thought the Democrats were the ones that set the cloture rule at 60 votes. ETA: I guess I’m asking for a cite here. ---
**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, 8:29pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/173 "2016-11-30T20:29:50Z")
> [@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. If the result is exactly the same, does it really matter? The song and dance was skipped. ---
**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, 8:33pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/174 "2016-11-30T20:33:08Z")
As I now recall, I also wasn’t comfortable with the fact that Bork described himself as having been “a radical socialist” ([Robert H. Bork](http://www.infoplease.com/biography/var/robertbork.html)) when he went off to college. This told me either that: (1) He considered everyone a little to the Right of Attila the Hun to be a socialist. OR (2) That he was captive to extremist ideologies of one form or another…The sort of person who has way too much faith in his own ability to reason out what the one correct true and just answer is. ---
**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, 8:35pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/175 "2016-11-30T20:35:25Z")
> [@jshore](#): > > The sort of person who has way too much faith in his own ability to reason out what the one correct true and just answer is. I found this very funny given what you wrote just above it: > [@jshore](#): > > … the correct decision, as he did on flag burning … the correct decision, as he did on the Affordable Care Act. Do you see the irony here? ---
**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, 8:36pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/176 "2016-11-30T20:36:17Z")
…Oh yeah, and I might add that it seemed to be accompanied by a complete lack of empathy of how the law might impact real people, especially people who were different from him. ---
**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, 8:38pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/177 "2016-11-30T20:38:41Z")
> [@Damuri\_Ajashi](#): > > The ABA and lawyers tend to be liberal in the same way that facts tend to be liberal. Hmm … I’m getting this sort of feeling that you might yourself be a liberal … > [@iiandyiiii](#): > > I don’t understand what you’re saying – are you saying that it’s easier for the minority to stop something with the talking filibuster than with the current rule? If so, I don’t understand how – the talking filibuster requires actual effort, while the current rule just requires 41 Senators to say no, unless I don’t understand it. Under a talking filibuster, the majority needs to keep a quorum of members in the chamber at all times, or the bill fails. So the filibustering group can tag team with a few speakers taking turns while almost all the majority party needs to stay in session. If it’s a Rand Paul one-guy filibuster, then the majority can just wait it out. But if there are enough of the minority to keep it going tag team style, then it’s going to be successful in any event and is much harder on the majority, so it’s in their interest to just allow the non-talking filibuster. > [@jshore](#): > > Well, once you Bork apologists agree on the real (completely obvious to anyone if they are honest with themselves) reason why he was “punished”, please be sure to let us know! We await your pronouncements of The Truth with baited breath! You may be projecting here or confusing us with your liberal party line approach. Us conservatives don’t feel like we need to agree on the “real reason” for anything, or about anything else for that matter. Let a thousand flowers bloom … > [@](#): > > And, no, I don’t think you can magically discount the God-awful screed he wrote later…I think that God-awful screed lays bare how his judicial philosophy was driven by his extremist ideological views and not by any higher principles. Bork would flip that around. His position was that objections to “extreme ideological views” had caused the Court to grant itself powers that it shouldn’t have had. I agree with Bork about this. ---
**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, 8:40pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/178 "2016-11-30T20:40:57Z")
> [@HurricaneDitka](#): > > Do you see the irony here? Oh yeah…I posted that a little “tongue-in-cheek” because all of us, of course, have our own beliefs of what the “correct” conclusion is for various court decisions. But, to put it more seriously, what I would say is that occasionally Roberts and more rarely Scalia will at least carry their judicial philosophies to a point that gives them a ruling that the conservative Republicans might find distasteful in its outcome. I see no evidence of Bork ever doing that. ---
**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, 8:44pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/179 "2016-11-30T20:44:19Z")
> [@jshore](#): > > Oh yeah…I posted that a little “tongue-in-cheek” because all of us, of course, have our own beliefs of what the “correct” conclusion is for various court decisions. > > But, to put it more seriously, what I would say is that occasionally Roberts and more rarely Scalia will at least carry their judicial philosophies to a point that gives them a ruling that the conservative Republicans might find distasteful in its outcome. I see no evidence of Bork ever doing that. Gotcha. I haven’t studied many of Bork’s opinions, so I can’t say where he fell on that spectrum. Is there one of the four liberal justices that you think of as being more like Roberts (carrying their judicial philosophy to a point that gives them a ruling they find distasteful) than the others? ---
**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, 8:44pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/180 "2016-11-30T20:44:29Z")
> [@Fotheringay-Phipps](#): > > Us conservatives don’t feel like we need to agree on the “real reason” for anything, or about anything else for that matter. Let a thousand flowers bloom … Well, you might feel that way, but **Bricker** said: > [@](#): > > 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.” That statement didn’t exactly seem to me to resemble a thousand blooming flowers. [Previous page](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297.md?page=8) [Next page](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297.md?page=10)