No, they did not. The moment his nomination was announced the forces of the Left rose against him, and they did so for reason unrelated to his judicial philosophy.
That’s the point: they decided that they did not like his judicial philosophy. You call that “too far outside the mainstream,” but that’s a not an objective, measurable standard, is it? How many gavelites, exactly, did he deviate from the mainstream?
So?
That’s not accurate. They did not give him a formal vote. They certainly considered him.
I assure you that if Obama had nominated Neil Gorsuch or Tim Tymkovich, the GOP would have confirmed. Garland was a moderate choice, to be sure, but not a moderate strict constructionist or textualist.
Why can’t the Senate demand that judges adhere to the text of the Constitution in order to be considered?
Like jshore mentioned, there is a difference. Bork got a hearing and a vote. Garland didn’t. If the Senate had given Garland a hearing and rejected him, well, I still would have been annoyed, because I think Garland is a good judge and would have been a good Justice, but I wouldn’t have thought that the Senate was acting inappropriately. It wouldn’t have felt unfair or gamey to me the way this did. And, honestly, I don’t know why the Senate didn’t do it. I don’t know if it was because they were worried about defections from the caucus position…that there might be some Senate Republicans who would have voted for him. I don’t know if they figured it was one last chance to say fuck you to President Obama. I don’t know if they wanted to use the vacant seat I don’t know if they were just pissed that Scalia died when he did, and that put the Conservative bloc on the court in jeopardy.
As i pointed out earlier in the thread, for all that people like to shout “Bork” when it comes to Senate rejection of nominees for partisan or ideological reasons, it didn’t start with him. It’s true that the Senate traditionally gives the President deference about his nominees, but Rutledge was rejected for ideological reasons, Wolcott, during the Madison administration, Black, Caleb Cushing, etc.
Sadly, even refusing to consider a nominee isn’t unknown, but I don’t think it’s right, and while I know that nobody is forced to comply with what I think is right or wrong, it still doesn’t stop me from being disappointed or angry when I see people do things that I think is wrong.
Make up your mind, please. In any event, Bork did have a chance to express his views and he was voted on and rejected. That’s miles more courtesy than Garland has been shown, and for the Senate to pre-emptitvely declare that NO nominees from a particular president will be considered strikes me as not an exercise of their duties but a dereliction of them.
Just because I explain what someone else is saying doesn’t mean I hold the exact same position myself. I would think you of all people would be aware of this fact.
My position on this is different. My problem is their attempt at creating a new rule that the President should not be able to nominate someone in their last year in office. I believe this creates a problematic outcome. It does not promote the greater good.
Still, you have mischaracterized my more general position, which is not that one should ignore all rules to get a desired outcome. My position is and always has been that morality trumps law or rules.
What that means in practice is that one cannot follow an immoral rule. And that one should use the existing rules to get the moral outcome, not blindly follow them and let whatever happens happen. It does not mean I reject all rules. I reject rules that are not Good.
And that capital G is important, because, as you know, I hold that Good and Evil are not nearly so nebulous. There are still some disagreements in the middle, where things don’t matter, but, in the broad strokes, morality is fixed. People can’t disagree on the big stuff.
(I honestly don’t get how you, as a Christian, seem to hold that there is so much arbitrariness in what is right or wrong.)
In short, there’s no way your argument in the second paragraph makes sense to me. It’s not for them to decide what is right and wrong, so the only thing you said is that they ignored the rules for their own desires. They don’t get to make voting for a Supreme Court Justice nominee into some evil.
The only way that could happen is if they linked the vote to an immoral action. And they did not. We know the argument they made–the stupid rule I mentioned above.
Cruz, McCain, Burr. That’s three high-ranking republican senators. What, do you think McConnell is going to break ranks with that opinion? Orrin Hatch, maybe, who pushed the bullshit “not in an election year” line? Or any of the other republican senators who sat by and said nothing while their party hijacked the judicial branch?
Look, the fact is, the republicans used reasoning with no precedent based on absolute bullshit to deny Obama one of the basic roles of the presidency. Several went so far as to say that they should do exactly the same to Clinton. Why do you think this is a fringe opinion? There is clearly some dissent there, with a few republicans like Tom Cotton standing up and saying, “I will evaluate her nominees on their merits”, but making it clear that anyone who was a leftist would be unacceptable. That is a fair analogue to Bork, assuming the people they block are actually hardline partisans, and they actually find someone they can agree on.
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.
Yes. It is the high road. Because the alternative is letting the republicans get away with what they did. And that is fundamentally not okay. It’s not okay to say, “Sure, you hijacked the nomination process in a way that is obviously not planned for, but I guess because you were able to run out the clock (something you could do literally forever), you can choose your choice of judge”. That’s not okay. That’s obscene.
Because they flat-out said “we won’t confirm anyone Obama nominates”. And then, when Obama nominated someone with broad bipartisan approval, they went right ahead and stuck with the party line, refusing to even give him a hearing, or reject him and counsel the president on what kind of nominee they would accept.
…And this is somehow acceptable to you? It would be just fine if the democrats took the senate in 2018, and said, “We will reject any nominee who is not Ruth Bader Ginsburg 2.0!”? That’s perfectly fine? Because Bill Pryor Jr. is not some middle-of-the-road centrist. He’s a hardline conservative who thinks Loving v. Virginia should be overturned and that abortion is murder.
Okay. Let’s say that Clinton had won, and the republicans held true to their word to refuse her nominees as well. Would that be a constitutional crisis? Would you consider that a problem? Even if they said “We’ll accept it if you nominate Ted Cruz”?
Because the senate has the right to counsel and consent. And they rejected Bork. Please note, they did not:
[ul]
[li]Reject a candidate they liked on spurious grounds[/li][li]Refuse to counsel the president on what those grounds were[/li][li]Refuse to hear Bork[/li][li]Reject that president’s subsequent nominee[/li][/ul]
They looked at Bork, saw someone whose judicial philosophy they could not condone, and used their right, entirely within their power and entirely justifiably, to reject him. Then, Reagan nominated someone who wasn’t a regressive, sexist, racist hardliner (but, it’s worth noting, was still a conservative), and he received unanimous support from the senate democrats.
Bit of a difference, right? :mad:
On one hand, you apparently can’t turn off “lawyer mode” for five minutes to realize that a person who opposed the legal gains of the civil rights movement as unconstitutional and who rejected sexual equality as a principle might be a little bit outside the fucking mainstream, regardless of whether we have an objective metric for it. On the other hand, you can’t use that self-same lawyer mode to figure out that there are substantial differences between the right wing rejecting Merrick Garland (a center-left justice with broad bipartisan support) out of hand* and the left wing rejecting Robert Bork (a hard-line conservative with regressive opinions on laws against racism and sexism) in a clear yes-or-no vote. It kind of boggles the mind, to be perfectly honest.
*and refusing to even counsel the president on who might be acceptable, and flat-out saying that the president doesn’t get to make a nominee
If you believe Garland was shown more discourtesy than Bork, then you merely continue to confirm that your name will not appear on a list of people whose judgement I trust on the matter of courtesy.
My personal belief is that Garland should have been confirmed. But I understand the reasoning of a senator who says, in effect, “Why should the Democrats get to bend norms to their liking and Republicans have the role of passively accepting the new norms?”
The Democrats chose to reject a qualified nominee, and now are shocked that the Republicans are doing that to them. My view is that both sides should stop, and I’d take Justice Garland and a guarantee that Democrats will henceforth confirm on qualifications and not political litmus tests.
You can’t tell the difference between “We think this nominee is not acceptable” and “We think you shouldn’t be allowed to nominate anyone”, or you don’t see that as relevant.
They can, and they should. The issue is that Democrats are much more reliant on justices making up laws in order to impose things on the country that liberals can’t get thru the legislative process, and therefore cannot afford justices who adhere to the text - the text doesn’t say what they want.
When liberals say that a justice is outside the mainstream, they mean he or she is outside the liberal mainstream, which is fanatically and unalterably committed to upholding decisions like Roe v. Wade and gay marriage, which are not based on the text of the Constitution but simply on the opinion of liberals who think anything they want is mandated by the Constitution.
It would be nice if liberals could come up with any argument besides IOKIADDI. Surprising, but nice.
Interpretations of the literal meaning of the Constitution can differ, believe it or not. Scalia-style Constitutionalism is just one way to interpret the text, and there are many ways. It really might be reasonable to disagree on what some of the text means.
Some liberals (and conservatives too) don’t care about this, but others do. It’s entirely possible to have an honest disagreement about this.
Because there are two questions there: are the “gains of the civil rights movement” good public policy, and are they mandated by the constitution?
The legislature should be the source of substantive changes in the law. You write about the “gains of the civil rights movement,” as though they were self-evidently right, but you mean they were wise public policy, and I agree. Or you mean that they were wise constitutional decisions, and I disagree. Because the constitution should not be amended by five unelected people with lifetime appointments, you see.
That’s the crucial point in play here, and that’s why the senate could very permissibly decide to reject Garland: because he believes that he has a role to help shape the social policy of the land by growing and shaping constitutional law.
I want judges who regard their roles as umpires: the legislature passes the law, and they do their level best, regardless of their policy preference, to apply that law to the facts of cases that come before them. An umpire that decides baseball needs a tighter strike zone and starts calling all close pitches as balls is not doing the right thing, even if there is strong agreement that we need a tighter strike zone.
Because you’re still doing what I decried above: looking at the results of how Garland might decide issues and saying, “Hey, he’s center-left, what are you complaining about?”
The results Garland might generate are unobjectionable in fair degree, yes. But his judicial philosophy is not of an umpire.
“Regressive opinions?” Why do you care what his opinions are? The question should be, “How does he apply the law?”
Now, I recognize that my umpire is not an objectively correct model for a judge. It’s my opinion about how unelected judges with lifetime appointments fit into the notion of representative democracy. So who gets to decide which opinion carries the day?
The President. He gets to pick. But since the Senate can confirm, and they are also a feature of representative democracy, the deference owed the President’s pick is a matter of custom, not constitutional force.
You broke it with Bork.
You cannot now complain Republicans broke it with Garland. Sure they did, and perhaps more so. But water started out of the dam with Bork.
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!
And yet, ironically, while berating me for rejecting Bork for his interpretations and opinions (we’re talking about someone who defended Poll taxes and rejects the right to privacy), you are stringently holding to one specific way of interpreting the constitution that is not widely accepted among legal scholars, or indeed among the majority of the supreme court since… Well, you tell me. You’re the expert here. But even Scalia can hardly be said to have held himself to that lofty standard.
Friendly reminder: this guy defended the poll tax and literacy exams. He would have gone to the highest court in the country and fought to reverse the civil rights movement, overturning the ruling jurisprudence. Whether he’d consider it a reasonable interpretation of the constitution or not, his opinion is not the only one, and his interpretation is not the only one, and the democrats had every right to say, “No, we’re sorry, find someone less repugnant”. Which they did. And they then immediately confirmed that person. We didn’t break the system with Bork. That’s asinine. We used the system exactly the way it was meant to be used.
Sure. If I interpret your post as saying that you entirely agree that Roe v. Wade should be struck down, and Garland should never have been considered, and say it emanates from the penumbrae of your post, is that reasonable?
Or should I stick to the text of your post when I want to interpret what it means?
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
That, frankly, is a ridiculous way to view the world. Furthermore, I doubt that the Bork nomination was the first time ever then a nominee was rejected who met some minimal competency qualification.
As for Bork being outside the mainstream, yes that is obviously a judgement call, but that was a view that was shared by all but two Democrats and by six Republicans, including Arlen Specter who is one of the most knowledgeable Republicans in this area and member of the Judiciary Committee, Mark Warner, Robert Stafford, Lowell Weicker, Bob Packward, and John Chafee.
I will add to what Budget Player Cadet has said about Bork that if you read his subsequent screed “Slouching Toward Gomorrah”, it does not read at all like the work of a brilliant legal mind. It reads like the work of an extreme ideologue.
That’s what I’m saying – there are different ways of interpreting just the text. The literal meaning can be different depending on who is interpreting the words.
There really can be honest disagreements about what the literal interpretation of just the text means and includes.
IMHO, the well is poisoned once a guy becomes controversial, as Bork did.
At the time he was nominated, and before the campaign against him, he was widely regarded as one of the leading legal scholars in the country. (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.) The fact that afterwards liberals reinterpreted everything about him in a very negative light changes little, IMHO.
Bricker: We’ve been round and round on this a number of times, so I’m not sure it makes sense to jump back on the merry go round, but…
There is a substantive difference between:
We reject this nominee
-and-
We will not consider any nominee. Only the next president can nominate someone.
You can claim that the Republicans would have “happily” confirmed so-and-so, but the clear message they gave was #2, above.
If our disagreement is that you think the Republicans would have given in under certain circumstances, then maybe we can disagree on that point. 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?
ISTM fairly obvious that the Republican line about waiting for the next president was concocted for the purpose of opposing Garland. YMMV.
On another note, ISTM that while various Republicans may have supported Garland at some point or other, there’s a big difference between supporting a guy at lower levels and supporting the same guy at the SC level. And there’s an even bigger difference if the guy is being nominated at a time when he would dramatically change the balance of a closely divided SC.
IOW, it’s not inconsistent to apply much closer scrutiny to the impact of SC nominations while at the same time allowing that not every single federal judge needs to be in ideological alignment with you.
In sum, I don’t think the prior “endorsements” of Garland should carry much weight.
