Since the Merrick Garland issue has been debated for years:
The closest opposite analogy I can come up with for the Merrick Garland scenario is if it were 2008, and Ruth Bader Ginsburg passed away abruptly (instead of Scalia,) and President Bush nominated a moderate centrist as Ginsburg’s replacement.
Yes, the Republicans didn’t even give Garland the courtesy of a hearing, which IMHO was wrong, but I feel that many Democrats would consider the replacement of a strongly liberal justice (Ginsburg) with a moderate centrist to be equally unacceptable as Republicans felt about replacing Scalia with Garland, as its effect would be to tilt SCOTUS to the right. The only difference is that Senate Democrats would probably give the centrist nominee the courtesy of an actual hearing as a formality before they voted him/her down.
So - suppose that this 2008 hypothetical took place - what would you prefer Senate Democrats do?
You do realize that historically in most cases a president’s Supreme Court nominee gets approved by very large majorities?
The notion that Democrats always vote in a bloc against all Republican nominees, and Republicans always vote in a bloc against all Democratic nominees is just false. False, false, false.
Yes, some nominees have failed to be approved. You know, like Bork. Others were approved after some controversy, like Thomas. But most nominees are uncontroversial, and are approved after a pro forma review.
Thing is, if Garland’s nomination had ever made it to the floor, it would have been approved overwhelmingly, because Garland was the sort of uncontroversial moderate that always gets approved overwhelmingly. That’s why the Republican Senate leadership couldn’t allow that vote to happen.
Can we please face facts and realize that stonewalling Garland was an unprecedented tactic? And that “hey, both sides are at fault” is just bullshit?
The Senate Democrats would have given the centrist a hearing and would have confirmed him/her. There was no guarantee that in Feb of 2008 that Obama or Clinton was going to win in November and the complete obstruction in the Senate hadn’t occurred. The blocking of Garland was really quite stupid, especially as it became clear that Trump was going to be the nominee. No one expected Trump to win, and I imagine McConnell would have rushed Garland through in a lame duck session had Clinton won.
Bush had no political capital in 2008, he would not have been able to nominate a Bork or another far right judge.
No. No, no, no, no. This will not go unchallenged.
Not holding a hearing might have been unkind, improper, politically calculating, a sign of cowardice, and so on. But it was NOT unprecedented. Several nominees to the Supreme Court never got a hearing or a vote. OMG we have been over this point SOOOO many times.
As Daniel Patrick Moynihan said, you are not entitled to your own facts.
The Senate refusing to even take a vote on a SCOTUS nominee is not unprecedented. Three times the Senate treated nominees by Millard Fillmore in such fashion.
Tyler had such trouble getting his nominees through that he resorted to re-nominating a candidate, Reuben Walworth, whose prior nomination had been dealt with in the Seante by tabling the matter and never getting and up or down vote. When Tyler again nominated Walworth the Senate just ignored the nomination, not even a vote to table.
A majority of the unsuccessful nominations to the high court never got an up or down vote in the Senate. Their nominations failed for a variety of reasons, including inaction by the Senate.
Just go read this thread. Page three post #149 is where names and dates of such ill treated nominees are laid out.
We keep going back to this so often that we need a damn Sticky. Garland was, IMHO, treated in a shitty manner. But it was not unprecedented that the Senate did not vote on his nomination. Amazingly enough politicians have been doing shitty things for a very long time. The present set of Senators are just recycling ideas that have been used before.
I believe any president has an obligation to make a nomination in a reasonably timely manner. The Constitution states that the president shall nominate and I think that implies an obligation. Recent nominations have been made within about one month, give or take a little bit, of the vacancy occurring.
The Senate, however, is not compelled to act. If they choose to do so and if they grant Advise and Consent of the Senate then the President should appoint that nominee. There is some question as to whether a president must appoint a nominee who has gained the Senate’s Advice and Consent with the GW Bush administration arguing a president is not required to sign the paperwork to officially appoint such nominee. I would argue that appointing such a nominee is a required duty of a president.
It is conceivable that it may be unrealistic to fully vet and put forth a nominee if a vacancy occurs with very little time left in a president’s term. Had Scalia passed away and thus a vacancy occurred the morning of January 20, 2017 instead of February 2016 then I would not have expected President Obama to make a nomination that last morning of his presidency, though he would be fully entitled to do so. And the Senate could choose to vote on that nomination if they could pull themselves into session fast enough. But I would not expect them to do so.
Now, had Ginsburg passed away with about 11 months of the Bush administration remaining, I would argue that Bush would have a duty to put forward a nominee. And I think the Senate should do its due diligence and vote on the nomination, in committee and in the full Senate. But I recognize that the Senate is not required to do so.
If the nominee is reasonably competent then I think a Senator should vote in favor of the nomination. But I recognize that any Senator may choose to vote against a nomination for any reason, or no reason at all.
The Congress is the real deal. I just wish there was a way to require Senators and Representatives to cast votes rather than hiding behind procedural issues as they so often do.
If the GOP can Google up ONE Democratic Senator who would have VOTED No to a HYPOTHETICAL nomination, that justifies 51 GOP Senators refusing to even ALLOW Obama’s nominee a vote. Or so Mr. Hurricane would have us believe.
Millard Fillmore?? John Tyler??? Google and Wikipedia are your friends: In which century do you think these Presidents were born? Heck, I’ll save you click. Neither was even born in the 19th century let alone the 20th century. Why not cite precedents from the ancient Roman Senate while you’re at it? It’s documented that Sin-idinnam delayed on a nomination by Hammurabi of Babylon in the 18th century BC — you may want to add that to your list.
But do color me gullible! I actually clicked your link (btw, please learn how to construct a friendly link — yours isn’t it) thinking you might have an example from recent times, e.g. when it was a Republican President who was obstructed. Nope! The link just takes me to Fillmore and Tyler again. :smack:
But thanks anyway! This will be a good bookmark for future Pittings or laughs. Asked for a cite of Democrats obstructing a Republican you reach all the way back to the Whig Party. If your post had any element of humor I might have guessed you were auditioning for The Onion.
Unprecedented is a tough standard to reach. Just takes one example to counter. And repeatedly stating the Garland treatment was unprecedented does not make it true.
I have acknowledged multiple times that it has been a LONG time since a SCOTUS nominee did not get a vote. See this post in this thread for just one such example where I mention that it has been more than 100 years since a SCOTUS nominee was dealt with in such fashion. But in the early days of the United States that was the way nominees would be rejected. After all the Advise and Consent process was drawn from the example of the Massachusetts Bay Colony.
Nominations fail to result in the nominee being seated as a justice for a variety of reasons. Some nominees got Senate approval but the candidates refused the position. Some nominations were withdrawn. And sometimes the Senate takes no action on the nomination and just lets it expire per Senate Rules.
Some good background on the whole Advice and Consent issue can be found in Toward the Framers Understanding of “Advice and Consent”: A Historical and Textual Inquiry (pdf link here). I’ve posted the link before, but it really is worth reading for those interested in how the US came to have the process it does for Presidential nomination and Senate confirmation for Article III judges.
This discussion has centered around the nomination of Garland to the Supreme Court. But that is not the only court to which a president nominates and appoints a judge with Senate Advice and Consent. And how has the Senate dealt with nominations to lower courts?
Rather frequently the Senate simply does not voteon nominations even when the Senate is controlled by the same party as the sitting president. There were 214 judicial nominees made by President Obama to lower courts that the Senate never took a vote on. And 50 of those were in the first two years of Obama’s term in which the Democrats held the majority in the Senate. Rejecting a judicial nominee by simply not voting on the nomination is a current phenomenon for the lower courts.
You know that “no action was taken on one nominee” was the case of no action being taken on Garland, right? And not because they fucking hated Garland, or thought he’d be a terrible Supreme Court justice, like when they voted against Bork. No, it’s because they knew that if Garland were put up to a vote, he’d be confirmed by a very large majority.
Your guys in congress are fucking smart. They’re passing tax cuts for the rich and corporate welfare as fast as they can, because they know this will be the last time the Republicans control congress for a generation.
I don’t have any of MY guys in Congress at all. Damn assumptions.
Recognizing the history of the courts and of past nominations is not a partisan issue.
As to the OP…
IMHO a change to the Advice and Consent process for confirming a nominee would be my preference. Something like a modified version of what the state of Tennessee implemented* by which the Senate would be required to vote to reject a nomination. A nomination is not allowed to be rejected by Senate inaction in that system. Though I would not hold judges to a vote to continue a term, beyond 8 years.
But this would require a constitutional amendment and that isn’t likely.
*… nominees must be confirmed or disapparoved by the General Assembly, which must vote whether to do so within 60 days of the nominee’s selection if it is in session, and within 60 days of the convening of the next session if it is not in session at the time of the appointment, and if no vote is taken within this deadline, the nominees are considered to have been confirmed by default.
You’re not from around here are you?