The Stolen Supreme Court Seat

[portlander23]

The Stolen Supreme Court Seat
New York Times Editorial Board
New York Times

Soon after his inauguration next month, President-elect Donald Trump will nominate someone to the Supreme Court, which has been hamstrung by a vacancy since the death of Justice Antonin Scalia in February. There will be public debates about the nominee’s credentials, past record, judicial philosophy and temperament. There will be Senate hearings and a vote.

No matter how it plays out, Americans must remember one thing above all: The person who gets confirmed will sit in a stolen seat.

The Republican party line — that it was an election year, so the American people should have a “voice” in the selection of the next justice — was a patent lie. The people spoke when they re-elected Mr. Obama in 2012, entrusting him to choose new members for the court. And the Senate has had no problem considering, and usually confirming, election-year nominees in the past.

The slope is both slippery and steep. If Republicans could justify an election-year blockade, what’s to stop Democrats in the future from doing the same? For that matter, why should the party controlling the Senate ever allow a president of the opposing party to choose a justice? Indeed, in the weeks before the election, Senate Republicans were threatening, with the encouragement of leading conservative thinkers, never to confirm anyone to fill the vacancy if Hillary Clinton won.

[MFM008]

1. It would remain 4 to 4

Indefinitely.

[airplaneman]

3. Not indefinately

4-3
3-3
3-2
2-2
2-1
1
As they die off one by one.
-Airplane

[appal_jack]

37. Things certainly could be worse than the present 4-4 split.

Using the 'logic' of the Republicans, I think it reasonable to leave that Court seat vacant until the White House is occupied by someone who actually won the popular vote. After all, the American people deserve a voice...

Confirming anyone who Prince Trumperdink nominates would almost certainly tilt the Court in bad directions.

-app

[onecaliberal]

2. That's why Dems shouldn't allow that seat come hell or high water.

[tenorly]

5. The problem is Bitchy Mitchy.

This is, after all, someone who owes his fortune to a drug-trafficking father-in-law, such that using the nuclear option to ram a Trump nominee through would be very small potatoes indeed - and the more extreme the nominee, the better.

[JudyM]

10. I so look forward to his leaving the earthly realm.

[tenorly]

12. Same here - but not before the full extent of his crimes is known to the public.

Where's Anonymous when you need them, right?

[JudyM]

15. Yes, mysteriously silent throughout all this mess. I hope there was no "accident."

[tenorly]

18. Good point.

The Republicans may have gotten to them somehow. They are, unfortunately for us all, much better - and much more brazen - at intrigue than Democrats are.

[center]

"Ohhh. Henry, you old Devil!"

"Why - thank you, Mr. President."[/center]

[JudyM]

23. No social conscience whatsoever, many of them. Welcome to DU, tenorly!

[tenorly]

24. Thank you, Judy - and Happy Holidays!

[Horse with no Name]

58. me too. n/a

[40degreesflaps]

40. Mitch McConnell...

...has either served or been involved with the United States Senate for about fifty years.

He's untouchable and knows it. Grimes barely laid a hand on him.

[Igel]

17. They can aim for the record.

The record is 841 days. If the Senate confirms a new candidate by the start of March 2017 that'll be #9 for length.

(Blackmun, Nixon's 3rd choice, came in at 391 days when faced with a (D) Senate--that was about 13 months., and he's #8 for length of the seat filled being vacant.)

[awoke_in_2003]

56. Maybe they should have

started fighting earlier, instead of thinking HRC would get the next pick. Senate dems allowed PBO to be disrespected and did nil about it. Of course, with a "leader" like Harry Reid what else would one expect. Our side loses because they lack spine and aren't willing to fight for shit.

[tenorly]

4. As many elections, and as much money, as Republicans have stolen,

a Supreme Court seat must be small potatoes to them.

[citood]

55. I think its the whole enchilada

"a Supreme Court seat must be small potatoes to them."

Scalia's death was a unique opportunity to 'pick up' a seat on the Supreme Court...opportunity lost.

[tenorly]

60. True that.

Not such small potatoes, are they. And knowing they get to fill a key seat like that thanks to sabotage at the time of Garland's nomination, and a third world-style election heist more recently, must make it that much more fun for them.

The day the Founding Fathers always dreaded has arrived, folks - big league.

[TeamPooka]

6. Democrats need to start fighting Republicans the way Republicans fight Democrats.

Or we need new Democrats who will.

[tenorly]

7. Hear, hear. And let Faux News wail and gnash teeth all the live long day.

In fact I hope they lose their minds doing so - oh, wait...

[lancelyons]

11. How exactly is that?

I do agree with you but im curious as to what you mean. How do republicans fight?

[Igel]

19. They do things like bottle up a bill in committee.

They threaten the nuclear option.

They attach poison-pill amendments.

The use reconciliation to get controversial bills through Congress by a bare margin of 51-49.

They take advantage of absences when some bill opponents aren't there to have a vote.

They use pro forma sessions to keep interim appointments from being made.

They have huge omnibus bills that do everything from name a park after some public icon to fund projects to enact policy-related legislation. And if you object to the bill because you don't like X in it, they tell the public that you're really opposing Y (which just happens to be something that the public wants done).


Uh ... I've lost the question. Am I saying how Democrats should continue to fight or how Republicans have fought. So hard to tell the difference just by looking at tactics. What's different is the bickering, the rhetoric, the frequency of use, and how nit-picking the application of use is. It's a truism at this point that the worst offender is the most recent offender, and that tactics one side hates when first suggested by their opponents in power become praise-worthy tactics when their opponents lose power.

[Crunchy Frog]

29. I take it you've been living in a bubble the past couple of decades?

[TeamPooka]

31. The first way is by obstructing. They have spent 8 years teaching America that obstructing

"bad policies" is a moral duty and they do it every day.
That's our job now and we need to explain it over and over.
The other way is by electing reps that are held to the fire for their votes for GOP policies.
Republicans primary any rep or Senator that even thinks about straying.
third we need to take over the Statehouses again
A 50 state strategy, like the GOP.

[elehhhhna]

49. Lol no. This bad cop worse cop act between the Ds and Rs works just fine for them.

[JudyM]

8. It is stunning that there are no Constitutional scholars who can figure out how to work around this.

[Wiseman32218]

33. I agree, at least someone found a law to use to prevent artic drilling

that helps somewhat, but we might be in trouble with the ages of Ginsberg and Breyer.

[wryter2000]

9. This really pisses me off

I can't believe they got away with blocking Garland. Effing bastards.

If the Orange Abomination puts up the name of a reasonable person (like Garland), appoint him/her. Any unreasonable nomination should be filibustered over and over until we get someone we can live with. And I'll be on the phone with Sens. Feinstein and Harris to make damned sure that happens. No more Scalias.

[40degreesflaps]

42. They Got Away With It...

...because McConnell has been a student of the Senate for about half a century and knows the place inside and out.

We're not the United States of California! Yes...I know that's where we raise all the money to fund the party but I'm telling you, there is a world away from Los Angeles and San Francisco. I grew up there.

Trump's nominee for that seat will almost certainly be Bill Pryor. He seems to have the inside track and there's strong support for naming someone without an Ivy League pedigree. If you live where you can BART to San Francisco, I'll meet you somewhere and buy you a drink if it isn't. I'm that sure.

We can't filibuster over and over because the media would barbeque us and it's bad enough right now. Expectations are so high for the new administration and he doesn't filter anything anyway...ain't nothing you can do.

We had a bad candidate in 2016. Now we're gonna pay for it.

[maddiemom]

44. More voters disagreed with your assessment of Hillary as a "bad candidate" than agreed.

We've GOT TO STOP disregarding the popular vote to the point that several million voters could have just stayed home.

[Nevernose]

45. In the immortal words of Hillary Clinton:

What difference does it make?

She won the popular vote. Great. We should all get right on buying her a participation trophy.

She's a damn fine woman in almost every possible way. She is, however, a shitty candidate. We know this because she lost the election. She was not what people wanted for a variety of reasons. "Good candidates" win elections.

[40degreesflaps]

62. Look...

...I spent four years in college and then untold numbers of hours (years) working on national campaigns. This has been going on for almost 250 years and you think you're going to change it now?

[wryter2000]

57. As if happens

I do live in Oakland. But I doubt you'd have to buy me that drink.

[40degreesflaps]

61. There's An Outstanding...

...(and I do mean that) coffee shop just behind the 12th Street BART station in Oakland, catty corner from the UCOP offices where my wife used to work. I could meet you there if you want. Let me know.

[Cosmocat]

46. Here is the thing - the COUNTRY allowed this

in my mind, the republicans should have been absolutely hammered in Senate races specifically, the POTUS and congressional races too, for the stunt the pulled with Garland.

BHO purposefully put a VERY moderate candidate, a fricken R, no reason that he never came up for a vote.

If democrats would have pulled that shit, they would been crushed in the next election.

Just another example of how this country relentlessly indulges conservative fuck wittery.

[bucolic_frolic]

13. Grand Larceny

by abrogating the Constitution of the United States

This is treason. They took an oath of office to uphold it. They didn't.

[40degreesflaps]

43. OK...

...you should make an appointment with McConnell's staff to talk about that. Let me know if you get past the guards.

[tritsofme]

47. Maybe with Trump taking office, you might be inclined to embrace a definition of treason

That is a little more concise than, "I don't like it and I'm mad"? Just a suggestion.

[bucolic_frolic]

48. How does undermining the government sound to you?

ignoring the Constitution and custom after having sworn an oath to
uphold the same.

Treason, definition: "the crime of betraying one's country,
especially by attempting to kill the sovereign or overthrow the government."

[tritsofme]

50. McConnell and Republicans smashed norms, they did not violate any law.

They had the majority, and the votes to keep Judge Garland off the Court.

While it has been an incredibly frustrating political situation, that does not make it treason, no matter how upset it makes us.

[bucolic_frolic]

53. "the sovereign"

of course, for students who took Political Thought courses,
refers to not just the person occupying the office and functioning
as head of state, but the "State", the national government and
bureaucracy in all its manifestations.

Hannah Arendt took this point of view in her view that bureaucracy
can be a "tyranny without a tyrant"

Incidentally, for those wishing further expedition on such topics,
www.openculture.com as well as youtube, have some great courses
on Political Thought from Hobbes to Rousseau to Locke, Burke and more.
Usually taught as two parts, rare to find a course on American Political
Thought.

[bucolic_frolic]

59. Then our Demcratic elected officials

should use the same tactics with impunity

if they have the composition to carry out the same plan

[tritsofme]

64. If Democrats are able to win back the Senate during the Trump presidency

I have no doubt that revenge will be dished out. After the last 10 years of judge wars, there's no going back.

[SHRED]

14. Block these criminals

[many a good man]

16. Dems will have the majority in the Senate

for a few hours after the term ends for the outgoing Senators and before the new Senators are sworn in. They can use this time to confirm Garland. This is because twice as many Republican Senators were up for reelection this year compared to Democrats.

It's hardball politics and brazen defiance to the GOP and Trump so it must be done.

[7962]

22. Huh? I gotta have an explanation there.

How is the Senate going to be in session without 100 members?

[JudyM]

27. Don't we wish!

If they can legally do it they should, but they have no stomach for it.

[SickOfTheOnePct]

36. There is no gap

per the Constitution...the old term ends and the new term begins at noon on January 3rd, 2017.

[Johnathan146]

38. They don't have a quorum

At least if they tried to pull that stunt. All the republicans could walk out except one.

The one that stays behind could request a quorum vote, which is then required to take place.

[40degreesflaps]

41. Do You...

...realize how much trouble that would create for Schumer? No hearings, nothing...just a vote?

This isn't how the Senate works. These guys have to work together and sometimes even live together.

Forget it.

[many a good man]

39. Some obstacles

Quorum is 51 votes, only 33 were up for election so that leaves a quorum of 67. Its not clear whether the new term starts automatically or only upon being sworn in.

Main obstacles are Rules II and XXII: first order of business should be seating new members and you can't confirm on the same day of nomination (or re-nomination in this case).

http://thefederalist.com/2016/12/07/no-senate-democrats-cant-use-nuclear-option-confirm-merrick-garland/

[7962]

20. Most cases have not been 4-4. It just that those decisions make the news.

a good number have even been 7-1 or 8-0. Still stupid that the seat wasnt filled, but it hasnt been too much of a hinderance but for a few cases

[kairos12]

21. Scorched Earth. No Rethug nominee for SCOTUS. No reward for stealing the seat. Ever.

[Jim Beard]

25. No time to be nice, even in public when confronted by the knuckledraggers.

[CrispyQ]

26. "...whats to stop Democrats in the future from doing the same?"

The fact that they're democrats!

[Crunchy Frog]

28. Any Dem who votes to confirm should be primaried.

[InAbLuEsTaTe]

30. "Stolen" is the right word. Dems should respond in kind... block the Fuhrer-Elect's pick indefinitely. (It's only fair!)

[DonnaRx7]

32. We've lost our way

Just like Hillary missed the mark by not focusing on the rules of the game (like Dumpfs focus on the EC), we need to USE the rules to our advantage. This is something R's are becoming increasingly adept at doing.

I'm tired of whining, we need to USE the rules to our advantage.

[gopiscrap]

65. welcome to DU

[BzaDem]

34. There is only one way that Democrats could fight back within the scope of the Constitution

Filibustering won't work, since Republicans would just nuke the filibuster.

Confirming before a third of the Senate is sworn in is not Constitutional, as the Constitution states that the terms of all newly elected Senators begins precisely at noon on January 3rd. (This is similar to how the President's term begins precisely at noon on January 20th, whether or not he is sworn in.) It would also be a very poor option on other grounds. (Perhaps a party can wait 2 years to swear in new members, and legislate in the meantime? It is ludicrous.)

The only option is for Democrats to expand the size of the court when they win back the House and Senate. That would not set a good precedent; it would be repeated whenever one party acquired a "trifecta" (House + Senate + President). But that is what "fighting back" would look like, for better or worse.

[rickford66]

35. The President should have both Eletoral and popular vote majorities to nomiate

[SickOfTheOnePct]

51. Just no

Totally unconstitutional.

[doc03]

52. Obama should have just appointed someone and forced the Republicans to remove

him or her. You can bet if he was a Republican he would. The trouble with Democrats they show up at a gunfight with a
butter knife. Another thing if the Democrats would vote in the off years we wouldn't be in this shape to start with. Democrats
are in worse shape nationwide today since the 1920's. I remember the the talk about the death of the Republican party
and everyone thinking they didn't have a chance (the Clown Car Right?). Why is it the Republicans set a long term goal 30 years ago to take control from the bottom up and Democrats can't make a goal next week? It was as plain as day we were going to lose in the
Midwest and whenever any of use brought it up we were ridiculed. Now they worry about how to get the white middle class back and
call them stupid to their back.

[bucolic_frolic]

54. Unless Democrats use their nearly

3 million vote advantage to make NOISE

nothing much is going to change, and even then, slowly

But it's a start, all majorities peak somewhere

[Scurrilous]

63. K & R