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Comment by cj | Hacker News Reader

> Democratic Party using the judicial branch and SCOTUS to legislate from the bench because

Hasn't the supreme court been majority conservative for quite some time? Not majority liberal?

(unless your comment is sarcasm)

thought it was sarcasm at first, but it appears rubyistSeva genuinely isn't aware that the Democratic nominee was blocked four years ago on the basis of it being an election year, only for the Republican party to turn around and do exactly that this year.

The Republican party had no reason to hold confirmation hearings for Merrick Garland - the votes did not exist to confirm him. The role of the Senate is to provide advice and consent - there was no consent so there was no reason to do it.

This year is different - Republicans hold the majority of the Senate and the White House. This nominee has the votes.

To me, your comment reads as an interesting bit of mental gymnastics.

In that case, the Senate can always just refuse to confirm a new justice whenever the majority isn't the same party as the president.

yes, they can.

That is the case. I don't think it is obvious that this sort of naked use of power is always going to be the best strategy for a political group though. Only time will tell, but it appears to me that the coalition of voters the GOP has long relied on is starting to fracture.

That wasn’t the stated reason given by the party at that time. The line sold to the public was ‘can’t confirm in an election year,’ which can be found in many public statements by Republicans at that time.

Going through with a nomination while voting has actually started and announcing it one hour after the death of a justice is pure hypocrisy, plain and simple.

The Senate has traditionally accepted the president's nominee assuming s/he was qualified. Garland had previously been out forward by the GOP as an example of a qualified and respected judge. And let's not forget that had Clinton won, the GOP was determined to keep that seat on the court empty for 4 years. They said as much. And when they refused to even consider Garland they also said that their newly made-up rule would apply if the shoe was on the other foot. They clearly didn't mean that, and the rationale for confirming Barrett that you are parroting above is just that, a rationale. An excuse. Don't pretend the rest of us are stupid. We know exactly why your position on this has changed and it has everything to do with the fact that your side has the temporary power to do what it wants.

Don't act like "your side" wouldn't do the exact same if the parties were reversed.

A few years ago, they wouldn't have. Now they would, and should. The GOP has escalated and the Democrats need to respond in kind by expanding the Supreme Court and the federal judiciary, to undo the damage caused by years of Republican obstruction which prevented Obama from appointing hundreds of judges.

Please stop pretending that this game of escalating stakes and norm-breaking is somehow on the Democrats. We've been watching Mitch McConnell and we remember what he's done.

Believe it or not, the Senate used to actually follow the law as written and advice and consent, and not simply reject out of hand because the nominating president was of the opposing political party. 13 Supreme Court Justices have been confirmed by a Senate controlled by the opposing party since 1945. All of these were under a Republican President and confirmed by a Democratic Senate.

The last Justice to fail to be confirmed was Bork in 1987, for the very valid reason of his association with Nixon's Saturday Night Massacre prior to the latter's forced resignation.

The process was never intended to be a political, partisan battle, and this was respected by both parties until 2016. Merrick Garland was (and remains) eminently qualified for the seat, and nobody serious on either side of the aisle claims otherwise. I defy anyone to give me a cogent reason why he should not have been given the prescribed consent by the Senate. Mitch McConnell has most likely indelibly changed the Supreme Court confirmation process to be a purely political one, to the great detriment of the Court. Incredibly shortsighted, in my opinion, as it has dispensed with all pretense of a supra-partisan deliberating body.

> The Republican party had no reason to hold confirmation hearings for Merrick Garland - the votes did not exist to confirm him.

The senators are supposed to go to the hearing and then decide whether they think the guy should be confirmed. For you to say he didn't have the votes is to admit it is just a power grab.

Why not just hold the hearing and vote against him if you don't like what you hear? The silly thing about this is they could have just gone through the motions, just like they are doing now.

This has the entire list of ‘N’s in U.S. history:

https://www.senate.gov/legislative/nominations/SupremeCourtN...

Anthony Kennedy was a swing vote and he retired in 2018, so no - it was not "majority conservative". Kennedy voted in the affirmative for both Planned Parenthood v. Casey and Obergefell v. Hodges, both of which both being particularly egregious examples of legislation from the bench. I am both pro gay marriage and pro-choice - but neither of these things exist in the Constitution. Not one word. Either amend the Constitution or allow states to create their own legislation. If both Roe/Casey and Obergefell disappeared overnight - do you think abortion and gay marriage would all of a sudden become illegal in New York and California?

If the Democrats don't see the judicial branch as an extension of the legislative, then why would they be threatening to pack the court with justices that will vote for their causes?

If you think those hot button issues define liberal vs conservative, you may be farther to the right than you think.

I think you will find the overwhelming majority of things decided by the Supreme Court are ‘not in the constitution’. That’s simply not how or why it was setup.

https://en.wikipedia.org/wiki/List_of_United_States_Supreme_...

First case: Attorney General did not permissibly construe Controlled Substances Act to prohibit the distribution of drugs for physician-assisted suicide

3rd: Habeas corpus relief may not be granted on the basis of debatable inferences used to overturn the trial court's finding vis-á-vis peremptory challenges

5th: Arbitrator must decide legality of contract unless arbitration clause is itself being challenged

10th: States may constitutionally limit the evidence of innocence a defendant convicted of a capital offense may present at his sentencing hearing to the evidence already presented at his trial.

Wasn't Anthony Kennedy nominated by a Republican president?

> pack the court with justices

Without taking a side myself, I think the problem is this: https://en.wikipedia.org/wiki/Merrick_Garland_Supreme_Court_...

And more specifically:

> He [Mitch McConnell] said the next Supreme Court justice should be chosen by the next president—to be elected later that year.[1][2][3] Senate Democrats criticized the move as being unprecedented, and responded saying that there was sufficient time to vote on a nominee before the election.[4]

Democrats are not happy with the double standard set by Republicans of blocking a nominee when a justice dies during an election year when it's a liberal one, and not blocking (instead, quickly accelerating) a nominee when it's a conservative one.

Republican presidents have been notoriously bad at nominating justices that interpret the law as written, instead of projecting their own personal views and agenda onto them. Anthony Kennedy and David Souter both being particular bad appointees, John Roberts is also pretty bad.

Merrick Garland did not have the votes to be confirmed.

Let's not pretend that the democrats would not ram through a justice to replace RBG in the exact same scenario where they have the White House and the Senate.

> I am both pro gay marriage and pro-choice - but neither of these things exist in the Constitution. Not one word.

Neither does straight marriage.

Because marriage was supposed to be managed by _the states_ which is what the constitution says. Both Obergfell and Roe/Casey created constitutional "rights" out of thin air.

Republican presidents placed 11 supreme court justices in a row, from Nixon through GH Bush. Clinton placed two, and republicans have been whining about needing to fix the liberal supreme court ever since. GW Bush placed two, Obama placed two, and it looks like Trump will place three.

You are quoting someone, but I want to add on that "legislate from the bench" is a phrase that is invoked when the speaker doesn't agree with an outcome but never when they agree with an outcome. It means nothing.

It's not about having a "liberal" justice or a "conservative" justice. It's about having a court that does what is supposed to do - _interpret_ the law, not create it. Republican Presidents have been very bad at choosing justices that do this as well, David Souter being probably the worst example.

Pick a case where you believe they created law, then cite the bill that they wrote.

> You are quoting someone, but I want to add on that "legislate from the bench" is a phrase that is invoked when the speaker doesn't agree with an outcome but never when they agree with an outcome. It means nothing.

I like the outcome of Roe v. Wade but see it as an example of legislating from the bench.

There's also nothing wrong with that. The distinction between the different branches creating law is pretty vague. If congress makes a law and the court strikes it down, are they "legislating from the bench"? Or are they merely pointing out that the new law is incompatible with the rest of the laws?

The quote is right, law isn't just whatever the congressmen decide.

> law isn't just whatever the congressmen decide

That's what it should be and was intended to be by the Founding Fathers. When the judiciary strikes down an unconstitutional law, it is supposed to exactly be because it is not compatible with existing laws or the constitution. 100%.

“A law repugnant to the Constitution is void. An act of Congress repugnant to the Constitution cannot become a law. The Constitution supersedes all other laws and the individual’s rights shall be liberally enforced in favor of him, the clearly intended and expressly designated beneficiary.” –Marbury v. Madison, 5 U.S. 137 (1803)

Well, since everyone is claiming that with Barrett's nomination that it will turn into a Conservative majority, what does that tell you about what it looks like before that?

Everyone is claiming it will shift it from a 5-4 soft conservative majority, with relatively centrist Bush Jr. appointee John Roberts often siding with the Dem appointees on issues of human rights, immigration, and abortion restrictions, to a 6-3 hard conservative majority that will be well-nigh unbreakable for many years.

It will go from a conservative majority (typically 5-4 on polarizing cases — now 5-3 after Ginsburg’s death) to an entrenched conservative supermajority of 6-3, far less likely to ever render “non-conservative” verdicts on those cases. As you likely know.

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