Of course a president should not appoint a judge on the last few months of his term, should he?
> "Oh, we’d fill it,” McConnell told supporters in Kentucky on Tuesday when asked what he would do if a Supreme Court justice died in 2020 while President Trump was still in office
> https://www.washingtonpost.com/politics/2019/05/29/oh-wed-fi...
edit: Am I really getting downvoted for pointing out how the current administration already said it would handle this?
edit #2: Individual Republicans are declaring they're against rushing an appointment before the election (https://twitter.com/kyledcheney/status/1307113546136784897).
Seeing trump as a cause and not a symptom or as the leading disaster for American democracy is a very common distraction.
McConnell is the heart of all of it. He is nothing but an appetite for power. He’ll do anything. No morals whatsoever (and I say that neutrally, as a fact and not a moral judgement.)
And he wins.
EDIT: One might argue that Mr. McConnell correctly anticipated the desires of the USA electorate because in November of 2016 they expressed a wish for more conservative judges in federal courts. If the voting public was outraged by McConnell's actions, one might expect they'd vote accordingly.
This doesn't follow. There is no way to amend the Constitution by a national popular vote so the opinion of the majority of Americans is irrelevant to the question of any Amendment's passage.
A more likely reason such an Amendment wouldn't exist is that a majority of states favor the status quo, because most states are small and benefit from their current outsized representation in government.
Source: Article V
Edit: Corrected 3/4 -> 2/3
Edit2: I stand corrected. The Bayh-Celler proposal was passed by the House and filibustered in the Senate in 1970.
https://en.wikipedia.org/wiki/Electoral_College_abolition_am...
I believe this is factually incorrect. I'll offer Article V of the Constitution as my citation. Do you have a contrary citation to support this claim?
The major geographic divide in US politics is urban vs rural, not state vs state
He's Senate Majority Leader. That's literally exactly what he does.
Besides, he's whipped his party so hard they basically never break rank. Even Mitt "I'm not like the others" Romney votes with him nearly 100% of the time.
Take a look at any number of votes in the past year. There are plenty of Republicans who don't vote on party line (Republican and Democratic)
There absolutely are, they just happen to be a side-channel in this particular system.
We thankfully don’t (yet) live in a country where New York, LA, and Chicago control everything.
So much better!
What choice would you have made in 1787?
The Reapportionment Act of 1929 is the cause of the worst distortions.
It fixes the HoR at 435, and is the main cause of the gross imbalance of power.
Wyoming (the least-populous state) has .183% of the US population, so it should have .183% of the US House seats if they were fully proportional. It actually has .230% (1 / 435)--about 1.25× the power it should have. Rhode Island getting two House seats gives it about 1.34× the power it should have. Montana having only one seat leaves it at about 0.673× the power it ought to have.
As quantization errors go, the House's quantization isn't terribly distortive.
So Wyoming gets 4 EC votes.
So... WY gets 4 EC votes with it's 578k population.
My state of NC only gets 15 with it's population of almost 11M.
In what universe is that fair or just?
Those states are 20% of the population and 17% of the EC.
By taking advantage of the tiny states the EC can be won with less than 30% of the vote
https://www.npr.org/2016/11/02/500112248/how-to-win-the-pres...
We were supposed to be a group of states with a fairly limited federal government. I think it’s really unfortunate that’s been largely done away with.
McConnell rules through the consent of half the senate, not alone.
This is literally the purpose of the senate. We are a union of states, and the senate is where each state is granted equal power. One could argue that states should have been defined differently, but the point was that large states should not have absolute control over small states.
Edit: I'm loving the downvotes without comments. They're clear indication that some people are either not arguing in good faith or that they simply do not understand how and why the us is set up the way it is.
This is nonsense. Trump got three million fewer votes than Clinton.
Had Reid not pulled the 'nuclear option' the filibuster from the minority would stop the confirmation.
Please remember that luck (chance) is an important and sometimes decisive component in conflict. Today it seems the Republicans are lucky; who knows what the future will bring.
Regardless of which side you're on - I don't think that's a worthwhile basis for political discourse and shouldn't be the modus operandi for what basically determines the development of a country.
Then again, you're right of course - the fact that McConnell and other don't actually overstep in legal terms just shows that the rule set isn't suitable for the current political climate in a time which is shaped by disregard of norms and mutual respect.
And which was very much worried about and warned against by the founders, even if they immediately fell into it themselves.
We’re in an iterated prisoner’s dilemma and we’re still in the “last turn sets the new norm” phase. I’m hoping there’s a way out before too long.
- Factually correct. Reid did end multiple filibusters.
- Unbiased - this is an iterated prisoners dilemma in that each side is forced to assume the other will make a worse action given the opportunity.
Why is this being downvoted?
1. The supreme Court is not comparable to any other appointment 2. There's no guarantee that McConnell wouldn't have done this regardless
If McConnell violates this precedent that he set, I would strongly advocate for Democrats (whenever they have the Senate) to remove the legislative filibuster and increase the size of the SCOTUS to 17.
Well, this is how you become what you're fighting against.
Especially since you yourself suggest packing it to give an immediate "Democrat" majority, when it's incredibly likely, even without a new nomination, the Supreme Court remains republican for at least 8 years.
Personally I think this is what democrats (and people like you) are hoping for. It'd give an excuse to pack the court day one and maybe not immediately lose all public support.
https://time.com/5338689/supreme-court-packing/
To put it another way, the size of the House, Senate, and Presidency are determined by the constitution. The Judiciary is the only branch where it's size can be increased without a constitutional amendment, which could favor populism, regardless of who is in power, if it's expanded significantly.
Being as small as it is could speak to how the government has a tendency to concentrate/centralize power, even if it's relatively easy to spread that power out.
So, yes, the total number isn't fixed but the apportionment is.
Partisan politics is tiring. The US is steadily becoming more and more mediocre while the rest of the industrialized world improves, because we are focused more on winning petty battles than improving our nation.
The US Constitution is explicitly anti-democratic, and it always has been, as the founders intended. I'm not saying this is a good thing, I'm just saying that's what it is.
Limited ≠ Anti
Representative democracy is also limited compared to direct democracy, for example.
Remember that Plato defined democracy in opposition to monarchy and aristocracy. Universal suffrage, freedom to form parties and to manifest against the government are (part of) what defines modern democracies. Even Switzerland only resorts to referendums in relatively rare cases.
The anti-majority aspect should be obvious at this point: the President lost the popular vote (and indeed got the votes of only 26% of eligible voters), and the majority of the Senate represents a minority of voters.
The continual part is also essential. The less frequent the votes and/or elections, the less the public is able to express their wishes (and hold representatives accountable). Lifetime terms on the Supreme Court are the worst aspect of this. A member of the Supreme Court may be nominated by a President who lost the popular vote, confirmed by the Senate controlled by a minority of voters and whose members are only up for election once in 6 years. The Supreme Court justice then may hold power for decades, even as the "political winds" shift underneath the Court.
It's also important to note how difficult it is to change the laws, especially the Constitution itself. The Constitution was amended relatively frequently in the past, but now it's almost unthinkable. Separation of powers, checks and balances, mean that a determined minority can prevent pretty much anything from happening. They can completely thwart the majority from acting or changing the existing laws (which unfortunately have no expiration date).
If Obama had a Democratic Senate majority in 2016, Merrick Garland would have been confirmed. That's the precedent.
> The Senate and the nation mourn the sudden passing of Justice Ruth Bader Ginsburg and the conclusion of her extraordinary American life.
> Justice Ginsburg overcame one personal challenge and professional barrier after another. She climbed from a modest Brooklyn upbringing to a seat on our nation’s highest court and into the pages of American history. Justice Ginsburg was thoroughly dedicated to the legal profession and to her 27 years of service on the Supreme Court. Her intelligence and determination earned her respect and admiration throughout the legal world, and indeed throughout the entire nation, which now grieves alongside her family, friends, and colleagues.
> In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.
> By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise.
> President Trump's nominee will receive a vote on the floor of the United States Senate.
It's happening whether we like it or not, and there's no "precedent" we can appeal to in order to stop it.
> It's happening whether we like it or not, and there's no "precedent" we can appeal to in order to stop it.
Again, you're responding to some point I haven't made. I'm not claiming there's any way to stop it, I'm claiming McConnell is a man without honor or even decency and that the United States is headed into the toilet.
Sure, but it doesn't really matter. The issue is whether or not McConnell can confirm a Trump nomination this year, and he absolutely can.
To quote a great comment:
> McConnell had serious doubts that Obama’s nominee, Merrick Garland, would _fail_ to get a majority in the senate, so he forbade the nomination to come to a vote. So it’s a little different than you pose: you a pretending that Obama’s nomination came to a vote and lost (which would be entirely legitimate). The majority leader prevented that from even happening.
It’s the constitution, particularly the election process of the senate that’s wrong: There’s no reason every state, regardless of their population, should have equal say in who gets to decide the judiciary (among other things).
The Republicans are on the way out of the Senate, and McConnell knows it, which is why he's trying to ram this through now. https://projects.fivethirtyeight.com/2020-election-forecast/...
Part of that procedure is having your party in charge of the Senate at the time of said nomination. Obama did nominate someone, he simply could not get him confirmed. That's on Obama (and Democrats more generally).
Trump will also nominate someone, and because his party has a majority in the Senate, that nominee will likely be confirmed whether Trump wins the upcoming election or not.
I am 100% certain that if Obama had a Democratic Senate majority when he nominated Merrick Garland, his nominee also would have been confirmed. (As a registered Democrat myself, I would have demanded it.)
There is no other precedent here: you accomplish in office what you can (procedurally) accomplish. Trump lucked out here; Obama didn't.
Why would you need to block a vote you know you will win?
With a Democratic majority, Garland would have been confirmed. It's exactly because no Democratic majority in the Senate existed that Garland wasn't even voted on (and actually didn't even get a hearing).
That's hardly the whole truth. McConnell refused to even hold hearings.
"Elections have consequences" and all that.
Note: 15 nominations were not voted on by the Senate, including Merrick Garland.
https://en.wikipedia.org/wiki/Unsuccessful_nominations_to_th...
I think it's a perversion of the "advice and consent" language from the Constitution for the Senate to simply stonewall a nomination process until they get the President they want.
I was just thinking today about why Canada's Supreme Court isn't remotely politicized in the same way as the US. Part of it may be that we're just not as partisan, but I think the main thing is that with our parliamentary system, if the party in power has a majority—which they do the majority of the time—they can basically pass what laws they want. Of course, they generally refrain from doing deeply unpopular things since they'll pay for it at the next election, although even that does happen: eg. the Mulroney (conservative!) government implementing a 7% goods and services tax. Probably played a large part of them being out of power for a decade+ immediately following, but was great for the country fiscally from there forward.
Anyway, since the government can largely do what they want, there's much less need or reason to essentially try to enact 'legislation from the bench'. I couldn't even tell you the political leanings of our SC justices.
There are still plenty of downsides to this system of course (lack of proportional representation comes to mind), but it does appear to be more functional in a lot of ways than the US. And probably not by accident—the Canadian system was developed almost a hundred years after the US, and had it and other more recent governments as models; it was also soon after the US Civil War, which played a part in Canada adopting a strong federal system with less provincial power, relatively speaking.
Of course, it's easy to say all that. Much harder to actually enact significant reform!
It’s sad how many justices will be on the court, appointed by men that didn’t win the popular vote
or even the Electoral Vote. Remember that Bush v Gore was decided by the (Republican leaning) Supreme Court, not the electoral college.
https://www.washingtonpost.com/politics/2019/05/29/oh-wed-fi...
Declaring war? Responding to an attack? Talking to other world leaders? Advocating Congress to act on matters? Signing bills into laws? Naming post offices? Being allowed into the Oval Office?
Independent of this specific situation, there has to be a line drawn somewhere. And that line is Inauguration Day. (A case could be made that some powers cease on Election Day for a lame duck President.)
I feel terrible focusing on the political maelstrom and not RBG's legacy, but these are also important conversations to have.
I believe there is no precedent for the Senate confirming a Supreme Court justice in a lame duck session. If Trump loses to Biden and the Senate then confirms a Trump nominee in a lame duck session, that will probably be the end of the Supreme Court. I’d expect Biden and Harris to just stack the Court, and it to devolve from there.
Remember, there is no law requiring nine justices. Just a handshake agreement and precedent. FDR threatened the stack the Court unless he got his way. And who would ultimately determine the legality of stacking the Court? You guessed it, the Supreme Court.
Just for fun, here's another irrelevant quote:
“There’s nothing in the Constitution that says the president stops being president in his last year.”
- Ruth Bader, on whether the Senate should hold hearings and a vote on the Supreme Court nomination of Merrick Garland
In short, it’s not the President’s fault. He should nominate someone. Mitch is the one who said the Senate should not vote. The Majority Leader does have some say over the duties of the Senate as it’s up to him to bring the vote. If it doesn’t change the duties and he was derelict of his 4 years ago then I would have hoped to see some repercussions.
where's Justice Merrick Garland, then?
> “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,” McConnell said
> “You’d have to go back to 1888 when Grover Cleveland was in the White House to find the last time a vacancy created in a presidential year was confirmed by the party opposite the occupant of the White House,” McConnell said in March 2016
> “We think the important principle in the middle of this presidential election, which is raging, is that the American people need to weigh in and decide who’s going to make this decision,” McConnell said
> Speaking in his home state of Kentucky on Tuesday, McConnell was asked what he would do about a high court vacancy if a seat were to open up [in 2020]. “Oh, we’d fill it,” McConnell said
Rarely has the Democratic Party held all three branches recently. Holding the senate is a huge win for the republicans - they can be as obstinate and block things and only need a barest majority to do appointments and many other procedural shenanigans.
Like what the fuck is the house supposed to negotiate with? “We won’t pass bills”: the republican senate is entirely happy not to have bills passed. Now what?
The Republican Party is entirely devoted to debasing government and spoiling the notion of governance.
The upside of being the anti-government party is that you don't have to worry about being judged by how well you govern. It's a much easier position.
This is the next logical step.
"[The president] shall nominate, and by and with the [...] Consent of the Senate, shall appoint [...] Judges of the supreme Court"
Frankly, given the President, I would bet it will occur within the next week or two. I do wonder what the polling will be like on this issue. I can actually see a couple of scenarios where Democrats would want to run on a filled seat.
Not sure what the calculus is. If it’s unfilled, Biden will fill it. If it’s filled, he’ll expand the court. Not sure if that also depends on a senate flip, but I have a hard time believing the senate doesn’t flip during a Biden win.
Note that Trump and McConnell are rushing to fill the Supreme Court, despite 4 years of leaving about half the government posts vacant.
You hit on the problem without seeming to realize it. The Senate didn't delay the heck out of anything. McDonnell flat out refused to do anything about Garland's nomination. He declared the nomination "null and void" based on no precedence, case law, and certainly not any interpretation of the Constitution. The Senate majority leader should not be able to shut down the Senate and prevent it from performing its Constitutionally mandated tasks. If the Senate didn't want to confirm Garland they should have held all the appropriate hearings and held an approval vote. If it's the Senate's will that Garland not be approved that's fine. It was singularly McConnell's will that Garland not be approved so he just never allowed hearings. No matter your political leanings that should be seen as abhorrent if you profess to want law and order.
Wow, being a bit insulting there. I am stating how it works. The Senate Majority leader can do it. That's how it works. Supposed to doesn't really matter when talking about what will happen.
Ultimately a legislator's job isn't to respect precedence or case law. It's to create new law (and presumably precedent).
I don't think your point is unfounded, I just think arguing for a legislator to behave like a judge takes away from that point (unless you have a good argument why they should, but I think including that argument would be good at that point).
When the Republicans refused to confirm Garland, they did it fully within the processes laid out in the constitution.
If the Democrats had the senate now, we can guarantee they would have blocked every Trump nominee past and future. Or do you think they would have allowed Kavanaugh through? Of course not, they tried everything to stop him, inside and outside the process. And I know you cheered their efforts.
You're just being massively hypocritical. You want the Dems to block Trump nominees by any means necessary, but if elected Republicans simply use established processes to do the same thing it's "no regard for the constitution".
EDIT: Clarify garland situation, doesn't change the point.
They didn’t use votes. If it had gone to vote, Garland would have been confirmed. McConnell refused to bring it to vote.
It is not the senates job to decide if a nominee is worthy of being nominated, or if the president should make a nomination. It is their job to vote on the nominee. They did not do that.
And yes, I agree, the norms have gotten way shittier over recent decades. Both sides participated in this, back to the character assassination of Robert Bork, and the dems reneging on their promises around the Reagan migrant amnesty and probably before.
It is hypocritical and childish to put that all on one side.
Any American politician who appears to have such a regard 9 times out of 10 is a manipulative psychopath who is stringing you along.
The president nominates and senate confirms.
Sure, it may be very hypocritical to fill the seat before the election, but has politics not been hypocritical? And in "norms", the refusal to have a hearing on Merrick Garland is not the first example. Congress flouting "norms" goes back centuries.