McConnell immediately clarified his position was "the Senate shouldn't consider a nomination in an election year if it's controlled by my party and the president isn't in my party" -- no kidding, this was his actual clarification.
What happened with Garland had happened numerous times before:
> In short: There have been ten vacancies resulting in a presidential election-year or post-election nomination when the president and Senate were from opposite parties. In six of the ten cases, a nomination was made before Election Day. Only one of those, Chief Justice Melville Fuller’s nomination by Grover Cleveland in 1888, was confirmed before the election.
By contrast, if Trump doesn’t put up a nominee, it will be literally unprecedented.
And the response is to demand something that actually would be unprecedented: packing the senate? Which only Democrats have done before, under circumstances where it was obviously to coerce the Supreme Court into deciding cases differently. Acting like Democrats hold the moral high ground here is utterly absurd.
Further, there’s this: https://thehill.com/regulation/454463-ginsburg-dismisses-cou...
There are lots of things to argue but that isn't one of them.
The idea that a Supreme Court opening should never be filled when the President and Senate are opposing parties is utterly absurd.
It's true that the Constitution wasn't written like Ethereum to preclude all attempts to undermine it with bullshittery like refusing to even put matters up to a vote. That doesn't mean it's at all moral to ignore it.
Also, was "Packing the Senate" a typo? FDR threatened but did not pack the Court. "Packing the Senate" is a Republican tradition (not that the parties mean much consistently, going back centuries), which even a blatant partisan couldn't avoid admitting:
https://www.newsmax.com/michaeldorstewitz/democracy-republic...
And slaveholders (the spiritual inspiration of modern Republicans) had manipulated the Court to themselves since the beginning: https://en.wikipedia.org/wiki/Judicial_Circuits_Act
The Roberts Court disenfranchised millions of Democratic voters by gutting the Civil Rights Act. The fight over the Supreme Court's composition is a fight over pure electoral power.
It shouldn't be this way, but it is.
For some perspective, there were only 31 states at the time.
In any case, the refusal was a further erosion of any semblance of working towards the good of the country with people of opposing ideologies. The same goes for the increased frequency of government shutdown threats and occurrences.
Really, if those practices had stood for so long on norms, they should have been codified into law already. But the Congress, regardless of party, doesn’t like to cede any power. It’s equally unlikely that if the Democrats take control they’ll do anything about it either. I’m vague on what it would entail—it’s been a while since I read up on it—but another hurdle might be that it would take an amendment rather than a law. Regulating what the Congress does is explicitly harder than making laws for the rest of us.
Which isn't to say that there's no point in purporting to do so: you may hope to require a politically costly public vote (avoidance of which was a significant feature of the Garland no-hearing: with nobody else "on the record," outrage focused solely on the politically-safe McConnell). How effective this is isn't really clear though: voters seem to usually want "their side" to take full, uncompromising advantage when they are on top, and increased polarization means that the fear of alienating independents/moderates isn't as much of an issue, because there aren't any of them left.
Rules and procedures such as the filibuster are weaker still, as they require only a majority of a single house, and no cooperation from the President. We've seen that borne out as the parties out of power became more likely to use the Senate's procedures to stall the party in power, and the fairly quick recent dismantling of those procedures in a bipartisan fashion.
Constitutional amendments can do all sorts of things and their high barriers to passage make them solidly entrenched, but it's very difficult to imagine any issue commanding the necessary supermajorities to pass an amendment on any subject in today's America.
As for Democrats or Republicans in power after the election curbing this kind of partisanship, I wouldn't bet on it. There may be some pushes to try to codify
Of course, I'm splitting hairs between "refused to consider" and "voted against". But it's similarly splitting hairs to say that the party of the president makes meaningful difference as well.
Frankly, there's no good faith interpretation of McConnell's stance here as anything other than (ab)using his power to shape the judiciary.
Of course it does! The Constitution splits the nomination/confirmation process between two political branches. The process is supposed to be political!
The founders explicitly said that they didn't intend the system to be partisan, and indeed warned against the dangers of partisanship.
Of course they themselves formed parties a few years later. They weren't as wise as everyone seems to think.
I can read. I was referring to "The process is supposed to be political!" And by political, the implication is partisan, because otherwise it would be true by definition, and thus an uninteresting claim not worthy of ending in an exclamation point.
They did. The danger to the country is actually when they agree.
What happened here is that the Senate refused to compromise, and simply put the government in a holding pattern until they could get a more "agreeable" executive in office. Is that the way separation of powers was intended to work? I think not.
I see a common irrational theme of "let's change the rules because they didn't work out in my favor this time". I don't understand the logic behind this.
If anything, governors should have less power, not more. Decisions should be made on a smaller scale, states are too big for a one-size-fits-all model. And I certainly wouldn't want governors hand picking our senators.
[1] - https://www.breitbart.com/politics/2020/09/14/pennsylvania-j...
As an aside, Breitbart is one of the least trustworthy sources, and citing it does not help your argument.
Details on why you don't like the judge and which media outlet I referenced (i honestly just googled the story and grabbed the first one I saw) digresses from my point. And fyi once you digress from the main topic and shift to sub-aspects (without actually addressing the main point), it usually means you're arguing in bad faith, or your cognitive dissonance is kicking in. It's a mechanism used by closed-minded and stubborn people...Food for thought.
My own opinion is that the orders are constitutional.
IMO they didn't work out in anyone's favor. Our country is a mess, and the majority of people dislike both of the 2 major ruling parties.
He will do whatever it takes to hold on to his minority power. He did it with Obama and has already hinted ~2 hours after RBG died he'll happily do a 180 on his previous position this time around when he has the chance.
The reality of the situation is that in the US one party constantly pushes boundaries and test limits. The other party then adjusts to attempt to counteract that. Yet it’s sold as “both sides are just as bad as each other”
Court expansion hasn't happened yet, but if it does:
1. Them's the rules; sauce for the goose, sauce for the gander. (Or: Live by the rules, die by the rules.) (Or: Karma's a bitch, ain't it?)
2. What you call the "structural features of our government and institutions" are meant to serve the people, not vice versa. It's idolatry to put those features on a pedestal and declare them to be immutable. Presuming adequate protection of genuine minority rights, it's not illegitimate for a democratically-elected government to use lawful means to try to restructure existing institutions in pursuit of the majority's felt political needs.
In this case, the left is marching forward with all sorts of new policies—often ostensibly to deal with a societal problem, but causing more problems because the policy does not derive from first principles.
But the argument that "it's OK for us to do it, because they would" seems a bit thin.
It's OK to loot this store because if I don't someone else will...
And it's OK to do anything I like as long as I can point a finger and say "but he'd do it too"
So, yeah, this is a textbook case of hipocrasy, but being hipocratic doesn't matter as long as we win.
https://www.scotusblog.com/2016/02/supreme-court-vacancies-i...
1) Going back to the 1800s is routine in the legal world to understand what is accepted practice in our system. After all, the relevant rules haven’t changed since 1789. Aren’t examples from people who created this system particularly relevant to understanding how it’s supposed to work?
2) The SCOTUSblog article goes through the exact same examples as the National Review article for the 20th century. The only difference is that the National Review article looks at whether different parties control the Presidency/Senate. What is “propaganda” about that? The Senate and Presidency are political branches that are supposed to be at odds, potentially. Is there any reason to assert that this political rivalry shouldn’t extend to Supreme Court appointments? Is it “propaganda” to even posit the idea?
Moreover, stopping a vote entirely? That's unprecedented. Had there been a vote on Garland, he almost certainly would have been appointed. Many of the moderate Republicans in the senate, facing elections, would not have been able to justify voting him down to their constituents.
For the National Review to leave those pieces out is dishonest. I'm also not just referring to that article. The National Review has been dishonest propaganda for a while, making dishonest arguments that manipulate the facts (usually by omission or careful selections as here, but occasionally outright lying) to justify the actions of what has become a fascist party.
https://www.mediamatters.org/national-review/national-review...
> In a 1986 New York Times op-ed (3/18/86), Buckley urged that ‘everyone detected with AIDS should be tattooed in the upper forearm, to protect common-needle users, and on the buttocks, to prevent the victimization of other homosexuals.”
I'm trying to think of a plausible vehicle for arguing that if the Senate refuses to vote on a nomination within a reasonable time, then that refusal (i) constitutes a waiver of the right to withhold consent and therefore (ii) is deemed consent.
(Not saying you're wrong. If I repeat something, I like to have direct sources)
He’s basically that the partisan makeup of the Senate as of the most recent election should be the controlling factor.
It has the veneer of a neutral rule, and that’s all they need.
https://mobile.twitter.com/senatemajldr/status/1307121192516...
Obama was not a lame duck when Scalia died. McConnell et al redefined the term to suit their needs. As they will no doubt redefine it now.
There's always another election coming up.
They’ve shown up at elections, they’ve shown up for local elections, they’ve worked for every single advantage in power they could get. I mean these are the chaps who suffered a massive electoral defeat to Obama the first time and found their mettle by saying “one term president” like a mantra. They converted that into a fight for every micro meter.
Eventually anyone m would also realize that “winning” (at all costs) is the strategy that works and adopt it. The best strategies get adopted by market players.
The media environment for the past many decades now ensures that bipartisanship won’t work either.
Maybe it’s an incorrect cultural reading on my part,
>in the last 4 years
I’m talking 30 years. The last 4 years are just end results of other forces.
Also - america has never produced an event like the trump presidency. Does that feature when we discuss abuse of power in the last 4 years?
I know of no Democrat action that is comparable.
Not saying this is only the last 4 years. I agree, at least 30 years. But no, it is not the action of a single party.
I don't think anybody can argue in good faith that it is equally incumbent upon the Democrats to act in a manner consistent with principles argued for and precedents set by Mitch McConnell.
I am more annoyed by the fact that the supreme court has become a political arena. Making laws should be the responsibility of the elected legislator. A court, any court, should merely arbitrate on the conformity of legal disputes to these laws. If they acted that way, no one would really care who gets nominated to the supreme court. It is because the supreme court has taken the habit of ruling on matters that should be left to the legislator and effectively to make new laws that it has become a bitter fight for nominations.
I see the same power grab happening in Europe and am equally worried about it. No power should be given without accountability.
That's a weird way of saying "nominated a candidate via the regular process".
How could this be done? Political issues are in front of the court every day and minute. This makes it immensely political. How could then those mere arbitrators be non-political?
It was always political. It will always be.
> It is because the supreme court has taken the habit of ruling on matters that should be left to the legislator and effectively to make new laws that it has become a bitter fight for nominations.
Uhm. You know this is also something that has been going on forever, especially in every "common law" system.
https://supremecourtpress.com/chance_of_success.html
And in the majority of those cases the SC does only instruct the lower court on that specific case, refraining from creating new law as much as possible.
France is a "civil law" country. Courts there cannot "make new laws", they can only invalidate them. (And as far as I know this applies in general to all civil law countries.)
The German Supreme Court has, on two occasions, declared new constitutional rights: the right to informational self-determination (when deliberating a census process law) and the right to integrity of data processing systems (when outlaying voting computers). I don't know if that counts though since technically they argued that other constitutional rights implied these rights (but weren't mentioned explicitly because the German Basic Law was drafted in 1949).
The reality is that if we had a Democratic President and Senate, nobody on the left would be arguing that we have to hold off until the election. Chuck Schumer would no doubt be insisting that the Senate "do [its] job", as he did in 2016. [1]
It's hard to fault McConnell for doing precisely what he was elected to do -- confirm conservative judges and justices.
[1] https://twitter.com/SenSchumer/status/701953299268902912