I bet Merrick Garland will join SCOTUS

[Gorsnak]

@erysichthon

Everyone’s assuming that Hillary will get a SCOTUS pick if she wins and Obama withdraws the Garland nomination.

If the GOP retains control of the Senate, what’s to stop them from saying, “Meh. We’re okay with having just eight justices. We’ll let the American people decide in 2020 if they really want nine.”

Actually they’d get to decide in 2018.

[erysichthon]

@Gorsnak

Actually they’d get to decide in 2018.

True; good point.

I do think that, having put off filling Scalia’s seat for a year, they’ll feel emboldened to keep on putting it off as long as they possibly can. Why would they roll over for Hillary after they’ve gotten away with it for a whole year?

[Ace309]

I’ll take your bet.

I think Garland will make it, but there’s a strong enough probability he’ll be withdrawn that it’s worth the bet.

[bengangmo]

Any chance of deliberately allowing senate to go into recess so that Obama can make a recess appointment?

Kinda a “do it but I don’t wanna know about it” compromise?

[OldGuy]

@Dangerosa

I don’t know. I think that there is the possibility he’s in as a sacrificial lamb. That if the Senate and Presidency both go to Democrats, he’ll bow out or be pulled and Democrats will punish Republicans with a younger and more liberal justice. I don’t think such a move would be anything more than partisan bullshit, but I think its a possibility.

But it’s exactly the “partisan bullshit” the Republicans have asked for. They’ve said they want the new President to decide.

[usedtobe]

If Trump is the GOP nominee, I predict the Pubbies will fall over themselves to confirm.
'Cause they ain’t going to get a better offer from the NEW Dem President.

“You may not love this guy, but just wait and see who the next nominee is”.

[Elendil_s_Heir]

@Ace309

I’ll take your bet.…

That’s one - thanks.

[Really_Not_All_That_Bright]

@Gray_Ghost

I fail to see how a Justice that agrees with Heller, would vote to try and rehear Parker, after the 2-1 panel ruled that D.C.'s ban on handgun possession and of keeping firearms loaded infringed the Second Amendment and needed to be overturned. I fully expect him to explain it during his confirmation hearings, of course.

The possibilities are endless. He agreed with the result but not the reasoning. He agreed with the reasoning but not the result. He did not think the panel opinion was sufficiently convincing to be upheld at SCOTUS. He thought the issue was sufficiently important to merit en banc rehearing regardless of the outcome of the panel decision.

Don’t take my word for it:

@Bricker

He wanted the circuit to rehear the case. That means he wanted to change the panel decision.

Or he wanted the precedent to be a full ruling for the circuit instead of a panel.

Or he wanted different language in the circuit’s opinion while retaining the result, language that would have weakened the right.

Or he wanted different language in the circuit’s opinion while retaining the result, language that would have strengthened the right.

In other words, you have no idea what motivated his vote.

I have spent four years in the “Voter ID,” thread arguing against the unprincipled idea that we can discern homogenous malign motives from simple legislative votes. The same principle applies here, only more so. There are a kajillion reasons to vote to rehear a case en banc.

I fully support the reasoning and results in Heller and MacDonald. But I don’t support this weak inferential assassination trick, no matter how it is wielded or against who.

I think we can agree that Bricker is sufficiently conservative and/or pro-gun that his views on the issue are not politically motivated.

@erysichthon

Everyone’s assuming that Hillary will get a SCOTUS pick if she wins and Obama withdraws the Garland nomination.

If the GOP retains control of the Senate, what’s to stop them from saying, “Meh. We’re okay with having just eight justices. We’ll let the American people decide in 2020 if they really want nine.”

Well, the Judiciary Act (as amended several times) sets the number of justices at nine.

@bengangmo

Any chance of deliberately allowing senate to go into recess so that Obama can make a recess appointment?

Kinda a “do it but I don’t wanna know about it” compromise?

Possible, but it just kicks the can down the road. A recess appointment is only valid until the end of the next legislative session, so the Senate would still have to confirm someone in 2017.

[Asimovian]

I’ll take your bet. Not one I’d mind losing, but I don’t think I will.

[Bone]

@Really_Not_All_That_Bright

The possibilities are endless. He agreed with the result but not the reasoning. He agreed with the reasoning but not the result. He did not think the panel opinion was sufficiently convincing to be upheld at SCOTUS. He thought the issue was sufficiently important to merit en banc rehearing regardless of the outcome of the panel decision.

The possibilities may be endless, but some possibilities will be more likely than others. Do you believe Garland’s views on the 2nd amendment being favorable or unfavorable, for however you define those terms, are equally likely? I don’t.

His vote in Parker is not conclusive, sure. It is a data point. Him being nominated by Obama is another data point. It looks like a duck from my vantage point.

I can’t find statistics on the % of en banc reviews that either overturn or affirm the district or panel level decisions. Plenty of stats on the number of en banc reviews granted - and that number is very low.

[Really_Not_All_That_Bright]

I don’t believe that either, but that is a conclusion drawn from the fact that he is a Democratic nominee, and has no real support in his record.

[Mtgman]

So you’ve been asked twice about recess appointments and which side would win the bet if Garland is recess appointed.

You’ve got two other people willing to put money where their mouths are if that can be clarified.

Enjoy,
Steven

[Elendil_s_Heir]

@Asimovian

I’ll take your bet. Not one I’d mind losing, but I don’t think I will.

Thanks!

@Mtgman

So you’ve been asked twice about recess appointments and which side would win the bet if Garland is recess appointed.

You’ve got two other people willing to put money where their mouths are if that can be clarified…

I would win if there’s a recess appointment, since Justice Garland will have taken his seat.

[Gray_Ghost]

@Elendil_s_Heir

Thanks!
I would win if there’s a recess appointment, since Justice Garland will have taken his seat.

No bet then. I think that’s what’s actually going to happen. I barely can see a GOP-majority Senate denying Garland the opportunity to be seated. I can’t see at all, that same Senate denying themselves the opportunity to take more than three days off in a row. That recess appointments of Justices have happened in the not to distant past, is more reason to think this might happen.

Although, I wonder if President Clinton would be happy with inheriting a recess Justice from President Obama?

[mhendo]

@erysichthon

True; good point.

I do think that, having put off filling Scalia’s seat for a year, they’ll feel emboldened to keep on putting it off as long as they possibly can. Why would they roll over for Hillary after they’ve gotten away with it for a whole year?

Because their precise reason for delaying it this year is that there should not be a new justice nominated by a “lame duck President” (their words, not mine), and that the American people should get to weigh in on the matter this November. The consistent theme, over the past month, has been that it’s not really about whether the justice is conservative or liberal, but about whether a president in the last year of his tenure, in a time of strong political polarization, should get to make a nomination at all.

That whole rationale goes out the window once the 2016 election has been decided.

Of course, if Republicans retain control of the Senate, their next argument could be something like, “Well, the American people decided on a Democratic President, so we will now consider the nominee. But they also decided to leave us in control of the Senate, so we feel justified in rejecting whatever nominee she puts up.”

[China_Guy]

Then again, they happen to be politicians and I’d be SHOCKED, SHOCKED I TELL YOU, to find out that they are lying about the American people weighing in if the American people weigh in the wrong way.

Wouldn’t surprise me in the least that if a Dem is elected President and the Republicans keep the Senate, that they keep obstructing. One thing is clear, is that the Republicans realize just how powerful the Supremes are. Seems to me the Democratic Party has recently awoken to this fundamental fact of US politics.

[Isamu]

He sounds magic. Is he a wizard?

[PatrickLondon]

@China_Guy

One thing is clear, is that the Republicans realize just how powerful the Supremes are.

Is that why they keep singing “STOP! In the name of love…”?

[Dewey_Finn]

@BobLibDem

I don’t bet money, but I think you’re wrong. The Republicans have painted themselves into a corner. If they back down now, they piss of their base. I think if the nomination isn’t complete before the election, it should be withdrawn unless the president-elect is okay with it going forward. If Hillary is elected, she may very well want to pick her own justice.

I don’t think that matters much; the Republican base is already pissed off, which is a big reason for Trump’s dominance. I think the Republican senators will cave, and even before the election.

[Ace309]

@Elendil_s_Heir

I would win if there’s a recess appointment, since Justice Garland will have taken his seat.

I agree that this is the correct result. Just wanted that on the record.