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Democrats and SCOTUS nominees: then and now — 12 Comments

  1. One of the downsides of the election cycle is that Schumer will appear on TV constantly. Not that he is worse than Reid; but, I think that TV Mavens who might hesitate now and then to give the disgusting Reid a microphone, will rush to Schumer.

  2. If, as a result of intransigent obstructionism by Senate democrats, McConnell does go to the nuclear option for SCOTUS appointments… the Republican response to the predictable democrat ‘outrage’ should be to exactly quote Obama’s words above, right back at them.

    Pray that Trump nominates another Scalia.

  3. It will not happen, but I wish Ted Cruz was nominated and approved. We would have a constitutional justice for 30 years.

    GB,

    Using the ‘nuclear option’ for SCOTUS appointments is a very dangerous idea. One day the dems will have a senate majority (not as soon as 2018) and someone similar to Bill Ayers could end up on the court. BTW, 2018 may see major gains in the gop senate majority.. Dem senators are up for reelection in ND, MO, MT, IN, and WV which djt won by large margins. Manchin in WV may decide to switch to the gop before then.

    Then there a dem senators up for reelection in PA, WI, and MI. These are less likely to land in the gop’s lap, but djt also won those states. As we have seen strange things can happen.

  4. parker:

    Problem is, I have little doubt that the Democrats will not hesitate to invoke the nuclear option for SCOTUS appointments if they see the need. They don’t require a GOP precedent to do so. They will do it, GOP precedent or no.

    That’s why the Democrats shouldn’t have used the nuclear option in 2013. They opened the door. The toothpaste cannot be put back in the tube.

  5. Mr. Obama applauded the Senate’s move. “Today’s pattern of obstruction, it just isn’t normal,” he told reporters at the White House. “It’s not what our founders envisioned. A deliberate and determined effort to obstruct everything . . . . [NY Times]

    This illustrates just how much Obama, the constitutional scholar, knows about the document he claims to specialize in. It seems that many serious constitutionalists believe that precisely the opposite is true; that in setting up three competing arms of govt (Legislative, executive, and judicial) that the intent was to stymie government so that only the most important (i.e., agreed upon) government took effect and that the disagreement between the varying branches would keep government in check.

    In other words, if they are correct, gridlock should be the governmental norm and cooperation should be the exception.

    As for me, I have noticed that everytime government agencies agree among themselves, I find another hand in my pocket.

  6. What is at issue here is Senate rules not specified nor implied by the Constitution, even by the fabled but never seen ‘penumbra’. These rules have been modified from time to time. There is nothing holy about needing 60 votes to approve a SCOTUS nominee. The rule can be changed by the majority. That’s all it takes (see Reid, whose Democratic majority did away with said option by simple majority vote).
    Interesting, from Wiki: “In most proposed variations of the nuclear option, the presiding officer [Pence, 2017-21] would rule that a simple majority vote is sufficient to end debate. If the ruling is challenged, a majority would be required to overturn it. If the ruling is upheld, it becomes a precedent. This would end what had effectively become a 60-vote requirement for confirmation of an executive or judicial nominee, or the passage of legislation.”
    Ahh, precedents!
    On balance, in due recognition of pros and cons, I favor doing away with supermajorities altogether. It is not (just) about hoisting Dems on their own petards.

  7. neo,

    I do not doubt you are correct about democrats using the nuclear option for SCOTUS appointments given the opportunity. I just think it should not be made easy for them by setting the precedence now. There is an old saying that there is so much shit in ____ it is easy to step in some. That applies doubly in the US senate.

    Term limits, repeal the 16th and 17th, except in extreme circumstances no use of military forces without a congressional declaration of war, a balanced budget amendment, all laws and regulations from DC must conform to the 9th and 10th….. an old farm boy can make wishes for his grandchildren. 😉

  8. Frog,

    You are correct. The Senate and the House make their own rules for how they conduct business. Call me old fashion, and I am, the US Senate was originally meant to be the body that represented the states and a check on the whims of the popular majority at any given time. We need to get back, get back to where we once belonged.

  9. Given everything Democrats have done after the election (and plenty before), there’s no doubt in my mind that they would invoke the nuclear option at the first chance.

    The GOP should just invoke it and get it over with.

  10. Parker,

    It doesn’t matter- Democrats made it abundantly clear that they would go nuclear on SCOTUS nominees if Clinton had won the election and the Democrats won the Senate. At this point, the Republicans holding to the filibuster on principle is pointless since the principle will be violated by the opposition at the first convenient opportunity.

    I remember this exact argument for principle being made by the Republicans in the mid-2000s when the Democrats filibustered numerous Bush appointees to the various appeals court- that they should uphold the principle because Democrats would use it to their benefit when they regained the majority. Well, guess what- Democrats did it anyway and were laughing their asses off while doing so.

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