Trump SCOTUS nominees facing a Democratic Senate

Suppose the following things happen:

  1. Democrats capture the Senate this November, and hold the chamber all the way through 2024 and beyond;


  1. Trump is reelected in 2020;


  1. One or more of the current Supreme Court justices dies or retires (especially, if, the liberal ones);

Should Democrats stonewall the vacancy replacement(s) for six years? (Assuming Trump only nominates judges who are Gorsuch or Kavanaugh types).

They shouldn’t, but they probably would.

Of course they should. The Republicans have made it crystal clear they have no integrity. The only reason not to, other than for the good of the country, is to be able to say the Republicans did it first. Which they kind of have but definitely will to the next Democrat president. They may as well fire first because the Republicans are just goinf to lie about them anyway.

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Well, let’s ask a simple question - if Clinton had been elected in 2016, would the republican senate have confirmed Merrick Garland? Buzz around the election was that the answer was no.

Mitch McConnell has, for all intents and purposes, broken this aspect of American democracy. He has made it clear that the republican party will not allow democratic presidents to seat judges if they control the senate. There’s no choice but to respond in kind, because not doing so simply means that the republican party will always have a huge… let’s just call it “asshole advantage” by simply being the bigger dicks.

Well sure, the Dems should do nothing in response to the GOP’s steal of the vacancy during Obama’s term. Let it be ‘heads the GOP wins, tails the Dems lose.’ Of course they shouldn’t do anything to rectify that.

Why not? That’s how your party wants it done these days, isn’t it?

Because they’ll be hypocrites and liars after all those speeches and statements they made in 2016 about the sanctity of an up-or-down vote for nominees.

That’s not a very good reason. Your kind should be stopped even if doing so makes you cry “Liar! Hypocrite!”

I guess it’s not if they don’t mind being liars and hypocrites.

Well, maybe you should chant for them to be locked up or something if it makes you feel better.

Maybe the situation could, ya know, force both sides to agree on a compromise candidate? Where the President vets the nominees with a bi-partisan group of Senators. For the good of the country? Is that too much to ask? It would be like, ya know, the different branches of government can check the powers of the others, for the good of the nation.

Wait, what country are we talking about? :frowning:

As tempting as it would be to say yes, I’m leaning toward no. To take an extreme case, if Trump nominates Merrick Garland, he should be confirmed. That isn’t going to happen, but if Trump nominates a center-right justice who is clearly qualified (Hardiman maybe?), the sort of person who would have been a reasonable compromise in any other administration with a Senate and president of opposing parties, I think that person should be confirmed. The goal isn’t to engage in perpetually escalating tit for tat; the goal is to get back to a government that is functional and respects the principles of compromise and moderation, and the only way I can see to get back there is to keep a path open for it to happen.

I’d be fine with a Democratic Senate blocking a whole string of Kavanaugh-like nominees, though, which I think is most likely what we would get from Trump in practice.

And your guys are … what, exactly?

Keep the personal cracks under control.

That goes for all of you.

Yes they should make it clear that no Republican is acceptable. Unless Trump appoints a Democrat with a liberal track record it would better to leave the seat empty. And if the Democrats have the opportunity down for the road they should go ahead and pack not only the Supreme Court but lower level courts with Democrats. Republicans are a threat to our country and their power needs to be confronted and minimized in every venue possible without regard to historical norms that Republicans themselves don’t respect anyway. The GOP went nuclear, Dems need to go nuclear in their retaliation.

Of course, the current Democratic leadership will never have the courage to pursue such an aggressive approach, but one can dream…

Y’know, it’s funny you mention this, because you literally just made the argument brought up in InnuendoStudio’s latest video: “The Alt-Right Playbook: You Go High, We Go Low”. Like, literally exactly the argument. (Great channel, by the way, totally worth looking into.) “You called us out for doing this thing, now you’re doing that thing, therefore you’re hypocrites.”

The thing is, though, it’s a bad argument. How does this argument work, exactly? We’re hypocrites because, in the past, we favored an up-or-down vote and now we don’t. Except… no, it doesn’t work like that. Our support of an up-or-down vote, our claim to its sanctity and importance? That was based on democratic norms; an understanding that “this is how we do things”. The same norms that led democrats to not block Samuel Alito (even though they technically could have). Norms which have been thoroughly destroyed. The “sanctity” is gone. It’s not just gone, it’s gone because your side killed it, because Mitch McConnell thought winning was more important.

And I’d say that there are way more important things than hypocrisy. Like, y’know, democratic norms. But, as McConnell has shown, what’s even more important than that is winning. The right wing has shown this quite admirably. They’ve run completely roughshod over every principle they claimed to hold dear, they’ve violated democratic norms up and down the line, and as a result, they have a strong, long-lasting majority in the supreme court, control over both houses of congress, numerous systemic advantages they created for themselves by attacking voter’s rights and the census, and control over the white house. They can basically do whatever the fuck they want (insofar as what they want isn’t monstrous or so unpopular that it’d lead to them immediately losing that power, which, it may surprise you to hear, doesn’t leave very much of their agenda on the table). So yeah, if a little hypocrisy is all it takes to win, fuck, I’ll take that any day!

Of course, as explained above, it’s not hypocritical. If you’d like to see hypocrisy, consider that your side destroyed those norms, while you are currently appealing to them. That’s hypocritical. If you start punching me in the face, and I tell you to stop, this does not mean that when I hit back, I’m suddenly a hypocrite, because the principle I was appealing to is either one you do not share, in which case I see no reason to be equally bound by it, or it’s constructed in such a way as to not be stupid (i.e. “You’re not allowed to hit people unless it’s in self-defense”). Being the aggressor in such a situation changes the context.

No. The Democrats should have a hearing and then a fair up-or-down vote. That doesn’t guarantee confirmation, but a nominee who is qualified and mainstream should be confirmed. What happened to Merrick Garland was an unprincipled exercise of power by the Republicans and it was disgraceful. If your scenario was asking if the Dems should stonewall during the last year, you could make a case for it in light of the past. But, to escalate by blocking for six years would be intolerable. A large part of the reason I can’t conceive of voting Republican is their disregard for institutional norms and if the Democrats do that level of escalation, it would make it difficult for me to vote for them too.

How do norms work? How are they formed? There’s no law saying that a senate has to accept a nomination from the president, as McConnell clearly showed. All there is is… a norm.

But norms don’t just come out of nowhere. They need to be built somehow. And it’s important to note that norms are fragile.

Let’s say the democrats do this. They take the senate in 2020, Trump gets reelected, and RBG dies. Trump then proceeds to pick another name from the Federalist Society list. Democrats have all the power in the world to block this nomination. You seem to think that in this situation, they shouldn’t. They should just let a 6th Federalist Society hardline conservative judge onto the court.

Why? What, exactly, is gained by doing this? We don’t magically rebuild the norm. The norm is broken. We didn’t break the norm. There is absolutely nothing to stop Mitch McConnell or whoever the next republican senate leader is from turning around and saying, “Wow, thanks for that, now watch us do exactly what we did again!”

In a game of iterated prisoner’s dilemma, when the opponent has made it clear that they’re going to defect no matter what, only a complete fool chooses to keep cooperating. The current norm is that if the senate and the president are at odds, there will be no new supreme court justices. That’s the new norm that Mitch McConnell created when he smashed the old norm. The democratic party cannot restore that norm single-handedly. What it can do is pretend the norm still exists, in the hopes that there’s a bunch of republicans who consider procedure more important than outcome, and continue losing because there clearly aren’t. If the democrats, in that situation, vote for Trump’s nominee, what do you think will happen the very next time the tables are turned? Do you think the republicans are going to look at that show of kindness and think, “Hmm, we should return the favor”? Or do you think they’re going to say, “Get bent, the supreme court is ours” the way they did in 2016? My money’s on the latter.

But what was the point of saying “When They Go Low, We Go High,” then? I mean, you’re even kind of referencing it with the name of that link, there: it wasn’t built around the other side doing likewise, it explicitly countenanced the idea of not responding in kind when the other side goes, uh, low.

So why that slogan, and not “When They Go Low, That Changes The Context, So There’s No Longer A Reason To Be Bound By We-Go-High Principles, I Guess?”

Letting a center-right judge through is still allowing the court to be controlled by conservatives. We should refuse any candidate who doesn’t actually restore balance to the Supreme Court.

Unfortunately, we saw with Kavinaugh that we cannot count on all the Dems to work together even for stated Democrat ideals, so denying the vote seems the only way to be sure. It is not “hypocritical” for the reason BPC states.

Once balance is restored, then reinstate the filibuster to move us back to normality, and pass a full law that would need 60 votes to undo that keeps the filibuster in place. Republicans will lap it up while they are out of power.

It’s like affirmative action. Fix the imbalance, then require equality.