That is fine. Then the Republicans should outvote them and install the new pick.
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.
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?
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.”
Unless they decide to increase the number of SCOTUS justices.
Or declaring Justice-hunting season open.
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.
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.
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.
“Consent,” is affirmative. That’s simply not going to happen.
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. 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 example are you thinking of in 2007?
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.
Really? Can you identify any other SCOTUS nominee who was not confirmed - let alone considered - because of that “rule”?
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.
I’m not sure what point you think you’re making that is inconsistent with what I posted.
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.]
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. 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.
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, 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”.
http://www.politico.com/story/2016/10/cruz-supreme-court-blockade-230363
They flat-out said it.
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.
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.”
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.
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.
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.