Patterico's Pontifications

9/22/2020

Mitt Romney: ‘If Nominee Reaches The Senate Floor, I Intend To Vote’

Filed under: General — Dana @ 7:57 am



[guest post by Dana]

He’s in:

My decision regarding a Supreme Court nomination is not the result of a subjective test of “fairness,” which like beauty, is in the eye of the beholder. It is based on the immutable fairness of following the law, which in this case is the Constitution and precedent. The historical precedent of election year nominations is that the Senate generally does not confirm an opposing party’s nominee but does confirm a nominee of its own.

The Constitution gives the President the power to nominate and the Senate the authority to provide advice and consent on Supreme Court nominees. Accordingly, I intend to follow the Constitution and precedent in considering the President’s nominee. If the nominee reaches the Senate floor, I intend to vote based upon their qualifications.

Last night, Colorado’s Cory Gardner, who is in danger of losing reelection, broke his silence and announced that he would vote to confirm:

When a President exercises constitutional authority to nominate a judge for the Supreme Court vacancy, the Senate must decide how to best fulfill its constitutional duty of advice and consent. I have and will continue to support judicial nominees who will protect our Constitution, not legislate from the bench, and uphold the law. Should a qualified nominee who meets this criteria be put forward, I will vote to confirm.

Susan Collins, who is in a toss-up race for reelection, and Lisa Murkowski have publicly said they do not support the Senate taking up a nomination before the presidential election.

This was FiveThirtyEight’s prediction before Romney and Gardner’s announcement:

Based on what we know right now, here’s the most likely way that the dominoes will fall: Trump chooses a nominee this week. The Senate holds hearings in October, but there is not a vote on the nominee before the election. Biden beats Trump. In the postelection, lame-duck Senate session, 50 Republican senators and Vice President Mike Pence combine for 51 votes to confirm Trump’s nominee, with the 47 Democrats, Collins, Murkowski and Romney in opposition.

As it now stands, there are 51 votes.

–Dana

206 Responses to “Mitt Romney: ‘If Nominee Reaches The Senate Floor, I Intend To Vote’”

  1. Good morning.

    Dana (292df6)

  2. Next Question: do you think the Dems will increase the court by 2, and claim it’s justified in some way. Or a larger number? I’m going with a larger number. I think they’ll add 6 and take the court to 15.

    Time123 (457a1d)

  3. Unlike Gardner and others, Romney can’t be dinged for hypocrisy because he wasn’t there. I agree with his decision.

    Paul Montagu (4a1ef8)

  4. Trump chooses a nominee this week. The Senate holds hearings in October, but there is not a vote on the nominee before the election. Biden beats Trump. In the postelection, lame-duck Senate session, 50 Republican senators and Vice President Mike Pence combine for 51 votes to confirm Trump’s nominee

    Inshallah.

    Dave (1bb933)

  5. 86-538

    mg (8cbc69)

  6. Unlike Gardner and others, Romney can’t be dinged for hypocrisy because he wasn’t there.

    Well, that doesn’t mean he didn’t take a position at the time, although I haven’t found anything in a cursory search.

    Dave (1bb933)

  7. So the clarified Mitch principle is that if the President and the Senate are held by opposing parties then the Senate should not consider, let alone confirm, a nomination in an election year.

    But how is that consistent with the general theory that a Senator is supposed to be judging based on qualifications, adherence to the Constitution, etc. Is the theory that an opposing President is incapable of nominating a qualified judge?

    Mitch, and now Romney’s “principle” is a pure power play and they should be more upfront about it. Looking back, Mitch’s unwillingness to even hold hearings on Garland gave the game away – he was afraid he couldn’t hold his caucus if they were actually forced to grapple with the views of a particular person, as opposed to simply standing on the “principle” that our team wins and yours loses.

    Victor (661f31)

  8. Then there is this crazed notion: Biden Harris declares that the Supreme Court has no authority to overturn duly-passed laws, that Marbury v Madison was wrongly decided.

    https://theweek.com/articles/938865/democrats-have-better-option-than-court-packing

    In response, even moderate liberals are proposing a variety of bold options, like adding additional seats to the court as Franklin Roosevelt once tried to do to push the court to stop overturning his New Deal programs. However, there has been comparatively little attention to the simplest and easiest way to get around potentially tyrannical right-wing justices: just ignore them. The president and Congress do not actually have to obey the Supreme Court.

    Kevin M (ab1c11)

  9. Romney is right and he explains himself in a way anyone can understand.

    That doesn’t make the partisanship look any less absurd out there, but imagine if Romney wasn’t the outcast of the GOP, but rather the bread and butter of it. He is more like the people at work this morning (not the ones trying to liberate Michigan who are always concerned about cucks and how gay they aren’t).

    Dustin (c34d2e)

  10. It’s exactly what I expected Romney to do.

    nk (1d9030)

  11. Well, that doesn’t mean he didn’t take a position at the time, although I haven’t found anything in a cursory search.

    Me neither, Dave, and my search was cursory as well. If Romney said something in 2016 about Garland, seems like it would’ve turned up by now.

    Paul Montagu (4a1ef8)

  12. Romney still is the bread and butter of the GOP, even if the rest of them are gorging on Coney Island hot dogs.

    nk (1d9030)

  13. Next Question: do you think the Dems will increase the court by 2, and claim it’s justified in some way. Or a larger number? I’m going with a larger number. I think they’ll add 6 and take the court to 15.

    And the next questions:

    – Will the People stand for it?
    This pretty much flies in the face of the Rule of Law, or at least conflates it with Calvinball. It is clearly an attack on the independence of the Judicial branch, bending it to the will of Congress and the Executive. It is the kind of thing that is associated with banana republics and budding dictatorships. It is not hard to attack it as a coup.

    Any such justices who accepted the appointments would be on notice that they would be impeached at the first opportunity, and as often as needed. Which would likely start after the first midterm following this incredible overreach.

    Will the SC stand for it?

    Again, this is easily seen as an attack on the independence of the Judiciary and a destabilization of the Court. It is such an excess that it breaches the normal Separation of Powers and is an affront to the Constitutional balance.

    They might allow one seat to be added. Maybe even two, although I doubt it. But 6? No. The Court would strike that down in an instant.

    Kevin M (ab1c11)

  14. Romney still is the bread and butter of the GOP

    The GOP has many wings. Right now what I call the “car dealer wing” is running free of all constraints. But the constraints are still there, as are the other wings.

    Kevin M (ab1c11)

  15. Time123 (457a1d) — 9/22/2020 @ 8:01 am

    Next Question: do you think the Dems will increase the court by 2, and claim it’s justified in some way. Or a larger number? I’m going with a larger number. I think they’ll add 6 and take the court to 15.

    We’ll find out soon. The D’s have made “burn it down” part of their 2020 platform. We’ll see how the voters take them seriously and how they respond.

    frosty (f27e97)

  16. Romney still is the bread and butter of the GOP, even if the rest of them are gorging on Coney Island hot dogs.

    nk (1d9030) — 9/22/2020 @ 8:31 am

    I see him as a loyal dog that has been left in the backyard in the rain for a few years when the owner took to drinking, still loyal any chance he gets. Dog might be the wrong metaphor for Romney though.

    Dustin (c34d2e)

  17. The historical precedent of election year nominations is that the Senate generally does not confirm an opposing party’s nominee but does confirm a nominee of its own.

    Justice Kennedy was nominated by Regan and approved by a Dem senate in 1988.

    So that would be the most recent counterpoint.

    But Romney’s position really is that they won’t do it if they don’t want to.

    Time123 (457a1d)

  18. It’s exactly what I expected Romney to do.

    Because Romney is consistent in his goals, which are to move the country to the fiscal and personal liberty. He does not see Trump as conducive to those goals, and does not automatically say how he would vote (we are thinking ACB, but Trump is quite capable of a Harriet Miers).

    Kevin M (ab1c11)

  19. We’ll find out soon. The D’s have made “burn it down” part of their 2020 platform. We’ll see how the voters take them seriously and how they respond.

    frosty (f27e97) — 9/22/2020 @ 8:36 am

    Burn it down was a Trump rallying cry in 2016.

    The constitution allows congress to set the size of the court. It’s just as fair (and harmful to the country) as what the GOP is doing right now. I know you think there’s some important principle that supports this, but it’s just legal use of power.

    Time123 (457a1d)

  20. Time123

    Well sure, in this sentence, “generally” is doing so much work it deserves to get paid:

    The historical precedent of election year nominations is that the Senate generally does not confirm an opposing party’s nominee but does confirm a nominee of its own

    .

    And I think changing the size of the Court is a great idea. It’s constitutional, it has historical precedent all over the place as one of the ways a Legislature reins in an out of control Court, and it’s a reasonable response to Mitch’s shenanigans. The size of the Court is a norm, not a principle. And we now know what the staying power of norms are these days.

    Victor (661f31)

  21. @20, I think it’s a terrible idea.

    Time123 (457a1d)

  22. Time123,

    There have been three cases of lame duck appointments/confirmations, where the outgoing party had one last addition to the Court. All were in the 19th Century, with he last being a Benjamin Harrison appointment.

    Only the first one was meaningful, where John Adams put John Marshall on the court just before Jefferson came in. The other two died withing a few years, giving that next president the choice anyway.

    Kevin M (ab1c11)

  23. There were others where the parties were not changing, but that is less on point.

    Kevin M (ab1c11)

  24. So you’re agreeing with me that this isn’t a normal course of business?

    Time123 (235fc4)

  25. In the past, when the inauguration was March 4th, there was more time for this. The fact that confirmation usually followed appointment by about 5 days helped, too.

    Kevin M (ab1c11)

  26. Time123: Next Question: do you think the Dems will increase the court by 2, and claim it’s justified in some way. Or a larger number?

    No, I think they’ll impeach Kavanaugh first, which they were threatening to do long before RBG passed away.

    Which shows that even when the Dems ratchet up the escalation, which they did for the umpteenth time with Kavanaugh, they still feel slighted. And, it shows that no matter what the Dems do, whether it’s this or government shutdowns, the usual suspects will blame Republicans every time.

    beer ‘n pretzels (d6c4fd)

  27. So you’re agreeing with me that this isn’t a normal course of business?

    It is only not normal in that it hardly comes up. FAR less frequently is an open seat left sitting there for the other party. The 1968 situation was due to a severe misjudgement by LBJ in picking a crony for Chief.

    Kevin M (ab1c11)

  28. And when LBJ quit the race in 1968, amid serious division in his party over Vietnam, his powers diminished greatly.

    Kevin M (ab1c11)

  29. No, I think they’ll impeach Kavanaugh first, which they were threatening to do long before RBG passed away.

    I don’t know that I’ve seen anyone serious saying this. Seems like a straw man.

    Time123 (235fc4)

  30. So you’re agreeing with me that this isn’t a normal course of business?

    It is only not normal in that it hardly comes up. FAR less frequently is an open seat left sitting there for the other party. The 1968 situation was due to a severe misjudgement by LBJ in picking a crony for Chief.

    Kevin M (ab1c11) — 9/22/2020 @ 8:48 am

    So what do you think the fair thing to do is?
    -Use the power they have to get whichever candidate they want?
    -Nominate a center right justice?
    -Try to collaborate with the DEMs on a more moderate nominee?
    – Wait?

    Garland was an older, center left Judge. It looked to me at the time that Obama was picking his version of number 2.

    Time123 (235fc4)

  31. Time123: “I don’t know that I’ve seen anyone serious saying this. Seems like a straw man.”

    https://www.nytimes.com/2019/09/15/us/brett-kavanaugh-allegations-trump-impeach.html

    “These newest revelations are disturbing,” Senator Elizabeth Warren of Massachusetts wrote on Twitter about The Times essay. “Like the man who appointed him, Kavanaugh should be impeached.”

    Kamala Harris, a Democratic senator from California and a member of the Senate committee that presided over his confirmation hearings, on Twitter echoed the call for impeachment.

    “He was put on the Court through a sham process and his place on the Court is an insult to the pursuit of truth and justice,” she wrote.

    Former Vice President Joseph R. Biden Jr. called the revelations “profoundly troubling” but stopped short of calling for Justice Kavanaugh’s impeachment. In a statement on Twitter, he called for an investigation into “whether the Trump Administration and Senate Republicans pressured the F.B.I. to ignore evidence.”

    Julián Castro, who was housing secretary under President Barack Obama, and Bernie Sanders, a senator from Vermont, also called for the justice’s impeachment.

    beer ‘n pretzels (a4febf)

  32. I stand corrected. I hadn’t seen the NYT article.

    Time123 (235fc4)

  33. Also, thank you for providing the link. I appreciate it.

    Time123 (235fc4)

  34. Time123 (457a1d) — 9/22/2020 @ 8:41 am

    I read the article but I might have missed it. They mention Erick Erickson who literally said “metaphorically speaking” in his quote and Joe Miller who says he’d endorse a candidate for that. Then the article proceeds to apply this to Trump and others:

    Of course, there is also Trump himself, whose supporters are motivated by the same exact destructive impulse.

    But doesn’t provide any actual evidence for that.

    On the other hand should I link to multiple twitter blue-checks with more influence than Joe Miller? Or should I link to comments made by Schumer, AOC, Harris, or BLM? Or maybe I should link to examples of things that have actually been burnt down?

    It sounds like you do and that your justifying it by the idea that it was R 2016. But that doesn’t sound like an argument you’d make. Either way, do you disagree that “burn it down” is part of D 2020?

    frosty (f27e97)

  35. Mittens skips around the house pretending to be Pierre Delecto…

    mg (8cbc69)

  36. Frosty, “Burn It Down” is a rhetorical statement that the current system is unredeemable and needs to be replaced. That was a view espoused by Trump supporters in 2016. It was often used in response to concerns that his character would lead to violation of norms that would be damaging to our system of government.

    If your position is that some leftists are now saying the same thing than I’m not going to disagree with you. But I think viewing the sentiment as a purely left wing one is a mistake. The nutjobs from both parties like to frame the system as irredeemably corrupt because they can’t easily get what they want from it. The only difference I see between the two parties in that regard is that the Left Wing Nutters dislike Biden because they view him as a vehicle of the current system. The right wing Nutters love Trump and view him as one of their own, likely because he speaks and acts as if he is.

    Time123 (457a1d)

  37. Near as I can tell there are several cases where a seat was left open between administrations, but usually due to the Senate being in the opposition’s hands. Obama, clearly and before him Millard Fillmore and JQ Adams were unable to fill a seat.

    Only Whig VP-turned P John Tyler, hated by many members of his own party, was unable to fill one of the two seats that came open during his term, and it was filled by Democrat Polk when the Senate also changed hands.

    I find no instance where a seat that came open in an election year and no appointment was made. Not one. And only Tyler and LBJ could not get their own party to confirm (although only Fortas was filibustered).

    The most recent cases of same-party nominations/confirmations were Reagan and Eisenhower.

    Kevin M (ab1c11)

  38. Its nate aluminum, so i’ll take under advisement, robert barnes link actually examines judge barretts record.

    Bolivar di griz (7404b5)

  39. Reasons for concern, although some you might think are fine:

    https://mobile.twitter.com/Barnes_Law/status/1308233568099860481

    Bolivar di griz (7404b5)

  40. I am not sanguine, they rarely give reasi to be

    https://amgreatness.com/2020/09/21/a-nomination-and-an-election-in-the-balance/

    Bolivar di griz (7404b5)

  41. @39

    Reasons for concern, although some you might think are fine:

    https://mobile.twitter.com/Barnes_Law/status/1308233568099860481

    Bolivar di griz (7404b5) — 9/22/2020 @ 9:38 am

    I’d be curious what Patterico and other legal-eagles think of this.

    I’m not sure Barnes is being fair to ACB, as there were reports how bad the plantiff handled this case, such that the more conservatives judges on the bench didn’t have much to work with.

    whembly (c30c83)

  42. Romney will waffle over something like a bellicose meanyboy-tweet from Trump and probably every other day.
    When he waffles against Trump his position will be heralded as principled and nuanced, when he waffles back for Trump’s nominee he’ll be back to Senator Magic Underwear with the dog on the roof of the car.

    steveg (43b7a5)

  43. Time123 (457a1d) — 9/22/2020 @ 9:28 am

    That was a view espoused by Trump supporters in 2016.

    I remember drain the swamp. Do you have anything for 2016 that matches what we’re seeing in 2020?

    But I think viewing the sentiment as a purely left wing one is a mistake.

    This isn’t something I said. I said the D’s have adopted this for 2020 and we’ll see how the voters respond.

    The only difference I see between the two parties

    I’m not sure why you want to make this a 2016 vs 2020 comparison but that’s the “only difference” you see? You saw right-wing mobs in multiple cities burning stuff down, rioting, and looting for months? You saw Pence raising money to bail out these right-wing agitators and encouraging them to stay in the streets?

    frosty (f27e97)

  44. Is it a coincidence that the senators most in danger are those who refuse to engage the issues with any kind of force.

    Bolivar di griz (7404b5)

  45. The left wanted to prevail then, they want to prevail now, thats the common element.

    Bolivar di griz (7404b5)

  46. Hey Frosty, I should I have said “the main difference I see between the two parties with respect to this view…” that would have been more accurate.

    Time123 (457a1d)

  47. The Democrats may well be in an uproar, but this situation wouldn’t be happening but for two things they caused.
    (1) Harry Reid’s colossal blunder in removing the filibuster.
    (2) RBG not retiring in 2015, when she was 82, or even in early 2014 when the Dems still held a majority.

    Paul Montagu (4a1ef8)

  48. They have demonstrated they want to abolish the republic, the only argument is over means but not ends.

    Bolivar di griz (7404b5)

  49. Seriously? After watching nearly four of a Slimy Clusterf**k Of A Miserable Corrupt Criminal Traitor, you don’t see anything different between now and 2016? 200,000 dead Americans in six months? The worst national debt in history? Russia and China outpacing us on the world stage? Thousands of lies and gaslighting? The country divided in two?

    You gave Trump his chance and he blew it. Who defined insanity as doing the same thing over and over expecting a different result?

    Do you think that the remote possibility of helping rapists, roundheels, and sundry libertines too stupid to use contraception, propagate their worthless genes, with wishful-thinking judicial appointments, makes up for all this? That it’s going to make America great? All the orange baboon has done is made America grate.

    nk (1d9030)

  50. nearly four *years*

    nk (1d9030)

  51. #50. Dems wanting to abolish the republic is no big deal. It’s Trump that’s the existential threat don’t ya know.

    1DaveMac (b2b831)

  52. @49

    The Democrats may well be in an uproar, but this situation wouldn’t be happening but for two things they caused.
    (1) Harry Reid’s colossal blunder in removing the filibuster.
    (2) RBG not retiring in 2015, when she was 82, or even in early 2014 when the Dems still held a majority.

    Paul Montagu (4a1ef8) — 9/22/2020 @ 10:07 am

    Agreed.
    (1) Can you imagine had Reid NOT nuked the filibuster what things would look like right now? The ideological split at the DC & 9th Circuit probably wouldn’t be as pronounced. Trump’s political appointees would probably be more moderated. Etc…

    (2) To be fair, no one really thought Trump had a chance. If we’re all honest. It was a rational gamble that she lost (if her goal was to be replaced by HRC).

    whembly (c30c83)

  53. Time123 (457a1d) — 9/22/2020 @ 10:05 am

    My original point was that the D’s are embracing “burn it down” in 2020. It sounds like you agree.

    It seems like you are trying to draw an equivalence between the two sides. If you want to do that then back it up. But what’s the purpose? It’s only justifying this spiral down and you don’t seem to want that.

    frosty (f27e97)

  54. @35. Comedy gold. Hopping mad becomes jumping for joy: Saying the President committed “an appalling abuse of the public trust” Utah Republican Senator Romney voted to convict President Donald Trump on the first article of impeachment for abuse of power. -USAToday,2/5/2020

    Sautee some frog legs– then crack that jar of Vaseline, Willard; Donald’s doing you for dessert.

    On deck, Lindsey-pitcher-or-catcher-Graham.

    DCSCA (797bc0)

  55. The Republic was abolished on April 12, 1861. A republic that needs a civil war to keep it together is not a republic.

    nk (1d9030)

  56. I don’t want to miss out on a chance to chime in with an “I told you so,” so here goes:

    Four years ago I was making the case that the GOP Senate was using entirely the wrong logic to deny Merrick Garland’s nomination a vote. Instead of all of this nonsense about “the Biden rule” or “nominations in the final year of a Presidential term” or whatever, they should have taken my advice and reasoned that given that Barack Obama intended to rule by executive order with his pen and phone — as in his likely unconstitutional attempt to stop deportations of people here illegally and to give young undocumented residents green cards — Mitch McConnell should have announced that if the executive branch no longer viewed legislative branch as a legitimate partner in setting policy, the legislative branch would no longer be under any obligation to consider the executive’s nominees. It would have ended with the same outcome, and we wouldn’t today have this banal argument about the Biden rule and whether it is applicable when the President and Senate are of the same party, and so on.

    JVW (ee64e4)

  57. There is a wonderful table on Wikipedia: https://tinyurl.com/y6ghotnl

    While there is no consistency and some odd situations (e.g. Buchanan made a nomination in Feb 1861, while his party technically held control of the Senate, but there were so many Democrat Senators absent due to secession that the nomination failed).

    Also, some 20th century history here (from early 2016):

    https://www.scotusblog.com/2016/02/supreme-court-vacancies-in-presidential-election-years/

    More history here (concise summary):

    https://www.nationalreview.com/corner/supreme-court-why-no-justice-has-beenconfirmed-in-the-fall-of-a-presidential-election-year/

    Kevin M (ab1c11)

  58. nk (1d9030) — 9/22/2020 @ 10:16 am

    It sounds like you’re having a tough week. It’d be easy to say something snarky but have you considered taking a little break? Turn off the news, stay off the internet, find something you enjoy, and just relax.

    frosty (f27e97)

  59. From the National Review* article:

    I have previously written up the history (mainly here and here) of Supreme Court nominations in presidential election years, or in lame-duck sessions following a presidential election. To summarize: there have been 29 such vacancies, and presidents made nominations for all of them, in most cases promptly:

    In 19 cases, the president’s party held the Senate; 17 of the 19 vacancies were filled, the exceptions being the bipartisan filibuster against Lyndon Johnson’s nominees in 1968 and George Washington’s withdrawal and resubmission in the next Congress of a nominee who was ineligible to be confirmed (he’d voted to create the Court, and the Constitution made him wait until there was a new Congress seated). Nine of those 17 were confirmed before the election, and eight after. Three were confirmed in lame duck post-election sessions even though the president had just lost reelection.

    In ten cases, the party opposing the president held the Senate; only one of the ten got a nominee confirmed before the election, two were confirmed after the election when the president’s party won the election, and one (Dwight Eisenhower’s nomination of William Brennan) was a pre-election recess appointment that was confirmed by the new Senate in the new year after Eisenhower was reelected.

    ——-
    * home of #NeverTrump

    Kevin M (ab1c11)

  60. Also in another thread (and more)

    Bret Stephens in the New York Times today has an op-ed piece in the form of an open letter to Mitt Romney n which he lists all the reasons (to prove he knows them) why the nomination of a new justice by President Trump should be pushed through but says it shouldn’t be done because they shouldn’t follow the Democratic Party into the gutter and to confirm a nominee now is not in accord with notions of democratic accountability and limited government. (are the Republicans moving, by and large, for judicial modifications of law? Aside from maybe trying to overturn the Affordability Care Act on the basis that repealing the individual mandate spoiled the law I don’t see it much.)

    https://www.nytimes.com/2020/09/21/opinion/mitt-romney-supreme-court-nominee.html

    …It isn’t hard to guess what you’re hearing from most of your fellow Republicans as they try to persuade you to cast a vote for President Trump’s Supreme Court nominee before the election. In a nutshell, it’s this: “The Democrats didn’t play by the rules in the past, and you’d be a fool to think they will play by them in the future. So why should we not fill a seat that’s constitutionally ours to have?”
    It’s bad advice. Bad for the country. Bad for the party. Bad for you.

    Lest you think I don’t get the argument, let me rehearse it. There used to be a bipartisan tradition of confirming well-qualified nominees for the court. Democrats trashed it with their trashing of Robert Bork. There used to be a bipartisan tradition of approving well-qualified nominees for lower courts. Democrats trashed it by filibustering George W. Bush’s appellate court nominees. There used to be a bipartisan tradition of respecting the filibuster. Democrats trashed it by blowing up the filibuster in 2013. There used to be a tradition of the Judiciary Committee treating nominees with a sense of fairness. Democrats trashed it when they used uncorroborated allegations to try to block and besmirch Brett Kavanaugh.

    In short, whatever sin is involved in moving forward on Trump’s next nominee this close to a presidential election, it’s a venial one compared with what the other side has done, and may still do….

    More is quoted near the end of the BREAKING: Ruth Bader Ginsburg Has Died thread. Then he gives his counterargument.

    Mitt Romney was a possible crucial vote.

    Sammy Finkelman (2cb3c3)

  61. The New York Times has a chart today (limited to wen the vacancy fell before the election and not counting nominations that were withddrawn)

    Sammy Finkelman (2cb3c3)

  62. So, to recap:

    * If Trump failed to make a nomination he would be the FIRST president to do so.

    * If a Senate of his own party failed to confirm his nomination, it would be only the second time (the first being Fortas).

    * Only once has an opposition Senate voted to confirm until after the election, and only then when the president or his party were re-elected.

    Kevin M (ab1c11)

  63. So, the Democrat claims, and the hand-wringing here, are just so much puffery.

    Kevin M (ab1c11)

  64. 54. Paul Montagu (4a1ef8) — 9/22/2020 @ 10:07 am

    (2) RBG not retiring in 2015, when she was 82, or even in early 2014 when the Dems still held a majority.

    They wanted her to retire (I read today) in late 2014, after the Democrats lost control of the Senate in the 2014 election.

    Between 4, 2014 and January 3, 2015, a new Supreme Court justice could have been confirmed in the lame duck session, if the Democrats nuked the filibuster rule for Supreme Court nominations. I think that was only done by the Republicans later.

    Sammy Finkelman (2cb3c3)

  65. Sammy, it would kill you to post a link?

    Kevin M (ab1c11)

  66. @58

    I don’t want to miss out on a chance to chime in with an “I told you so,” so here goes:

    Four years ago I was making the case that the GOP Senate was using entirely the wrong logic to deny Merrick Garland’s nomination a vote. Instead of all of this nonsense about “the Biden rule” or “nominations in the final year of a Presidential term” or whatever, they should have taken my advice and reasoned that given that Barack Obama intended to rule by executive order with his pen and phone — as in his likely unconstitutional attempt to stop deportations of people here illegally and to give young undocumented residents green cards — Mitch McConnell should have announced that if the executive branch no longer viewed legislative branch as a legitimate partner in setting policy, the legislative branch would no longer be under any obligation to consider the executive’s nominees. It would have ended with the same outcome, and we wouldn’t today have this banal argument about the Biden rule and whether it is applicable when the President and Senate are of the same party, and so on.

    JVW (ee64e4) — 9/22/2020 @ 10:21 am

    That’s… absolutely amazing and wished Cocaine Mitch listened to you.

    whembly (c30c83)

  67. Time123 (457a1d) — 9/22/2020 @ 10:05 am

    My original point was that the D’s are embracing “burn it down” in 2020. It sounds like you agree.

    It seems like you are trying to draw an equivalence between the two sides. If you want to do that then back it up. But what’s the purpose? It’s only justifying this spiral down and you don’t seem to want that.

    frosty (f27e97) — 9/22/2020 @ 10:21 am

    Frosty, we’re not far off in our view. I like the back and forth and courtesy you’re showing me. Thank you.

    The difference I see is that ‘burn it all down’ caucus on the Right is aligned with the leader of the party and holds signifigant influence. The ‘burn it all down’ caucus on the left, is repudiated by the leader of their party and dislikes Biden.

    Q-anon and the Alt Right are firmly pro-Trump and he embraces them.
    Antifa and the Bernie Bro’s detest Biden and he’s been clear that he’s not one of them.

    If you think my reasoning is sound but want proof let me know and I’ll dig up the evidence. (don’t have a lot of time atm)
    If you think the facts are there but the reasoning is flawed let me know.

    My purpose in saying this is that I think there’s a broad group of the left that is center left and would like to see our system continue with only slight modifications. Assuming that everyone on the left is Antifa, and planning your response accordingly, can be a self fulfilling prophesy.

    Time123 (457a1d)

  68. @68, this might have lead to limits and on the executive branch in general. I love it.

    Time123 (457a1d)

  69. A ‘Southern Strategy’ Redux.

    Love it.

    DCSCA (797bc0)

  70. one might more accurately say 1938, or whenever the ‘court packing’ blackmail scheme, succeeded, that was the purpose, 1965, was another tombstone date, 2009, the next way down,

    bolivar de gris (7404b5)

  71. When the Democrats nuked the filibuster on lesser court nominations, but kept it on SC nominations, they did not HAVE any SC vacancies at hand. If they had, they would have been sure to nuke any filibuster that emerged, just as the GOP did with Gorsuch. The GOP action was hardly a break with the past, as the Democrat’s restraint was entirely do to their lack of need.

    Kevin M (ab1c11)

  72. Gotta agree with jvw. No one took the gop’s explanation on 2016 seriously. Everyone was mocking it. Pretending this was some sacred rule was lazy.

    Dustin (4237e0)

  73. we have seen how the dems have proven averse to the first amendment, and the second, the third might be next up on the board, of course their progressive allies in the media organs, make this even easier to suppress samizdat media, all you need is media matters or hamilton 68, to deem what isn’t acceptable, while letting the spice, I mean narrative flow,

    bolivar de gris (7404b5)

  74. Four years ago I was making the case that the GOP Senate was using entirely the wrong logic to deny Merrick Garland’s nomination a vote.

    I think

    “Garland is anti 2nd Amendment, and our party favors it. We can no more support this nomination than the Democrats would support an anti-abortion jurist if the tables were turned.”

    would have been a fine rationale. Also truthful.

    Kevin M (ab1c11)

  75. Pretending this was some sacred rule was lazy.

    Well, condescending anyway.

    Kevin M (ab1c11)

  76. it is a pity, that gorsuch did not live up to the scalia standards, but recall he had to pass through the designated possums like corker and flake, and mccain, now we have other possums,

    bolivar de gris (7404b5)

  77. Again, if Trump did not make a nomination, he would be the first president EVER to fail to do so, even in an election year. What happens then is almost always dependent on party.

    Kevin M (ab1c11)

  78. now we have other possums

    Bork had Specter. Now we have Collins and Murkowski. Nothing to be done about Murkowski — they primaried her, she lost, then beat the GOP nominee as a WRITE-IN independent. That’s really hard to frack with. But Collins is history, as Trump’s voters leave the line blank or vote third-party.

    Kevin M (ab1c11)

  79. @81, you should use GAB or Parlor. I’ll bet you’d like them.

    Time123 (457a1d)

  80. it’s a matter of who doesn’t get the info, soros was just the johnny appleseed, steyer and rosenberg, run with the ball,

    bolivar de gris (7404b5)

  81. Time123 (457a1d) — 9/22/2020 @ 10:37 am

    Antifa and the Bernie Bro’s detest Biden and he’s been clear that he’s not one of them.

    You’re avoiding BLM, AOC, Harris, et.al. and the violence we’ve seen in multiple cities for multiple months. There is no Q or Alt-Right version of that. I fully expect the usual suspects to post links to a handful of unstable individuals but that avoids the point we’ve drifted into.

    Assuming that everyone on the left is Antifa, and planning your response accordingly, can be a self fulfilling prophesy.

    You are overstating my position, I don’t think all D’s are BLM/A, and you are understating yours, BLM is a violent marxist organization that is embraced by leaders within the D party and has significant influence.

    frosty (f27e97)

  82. we’re congratulating romney, for the equivalent of a participation trophy, that’s how low are standards have fallen, so gorsuch failed in the simple task of enforcing current immigration law, and there are other such low bars, the solution is not biden and harris, thats not even the right the right question,

    bolivar de gris (7404b5)

  83. remember last autumn when bernie organizers in iowa and south carolina as much as promised what would come before, you think they went away, they just dug in further, and waited for a signal,

    bolivar de gris (7404b5)

  84. BTW; did I hear correctly that the D’s are threatening to break up CA and TX if Trump replaces RBG?

    That sounds like a briar patch the R’s absolutely don’t want to be thrown into.

    frosty (f27e97)

  85. @85, I don’t agree that BLM is a violent marxist organization. I do agree with you that we need to get the violence if our cities under control. That’s something, you, I Trump, and Biden all agree on.

    Time123 (235fc4)

  86. BTW; did I hear correctly that the D’s are threatening to break up CA and TX if Trump replaces RBG?

    That sounds like a briar patch the R’s absolutely don’t want to be thrown into.

    frosty (f27e97) — 9/22/2020 @ 11:04 am

    Splitting a state into multiple new states requires and act of that states legislature. Then the US congress has to pass a bill admitting the new state. If you look at the realities of any state it will be hard to split it up.

    Time123 (235fc4)

  87. it’s like we have to get past fairytales like crowdstrike and fusion, puts out, the lies that harris and feinstein were never sanctioned for spreading, the libel that will follow nick sandmann for years, because garbage outfits like cnn and msnbc are proferred on the algorithm,
    so thousand currents spread mind arson through every outlet, encouraging open warfare against law enforcement, spreading sedition, against our institutions,

    bolivar de gris (7404b5)

  88. The Hill: HOUSE

    Ocasio-Cortez to voters: Tell McConnell ‘he is playing with fire’ with Ginsburg’s seat
    __

    Turn on the news kid, it ain’t the Republicans playing with fire.
    _

    harkin (783c12)

  89. hasn’t this extra from glee worn out her welcome,

    bolivar de gris (7404b5)

  90. Seems as though she is on a never ending audition for that loud mouth bimbo show.

    mg (8cbc69)

  91. Wait…wut?

    Breaking911
    @Breaking911
    · 1h
    BREAKING: South Korean President declares end to Korean War to open door for “complete denuclearization and permanent peace” – @YonhapNews

    whembly (c30c83)

  92. The Senate history states:

    While most of the Senate-related clauses of the Constitution are included in Article I, which creates the legislative branch of the federal government, it is Article II, section 2 that gives the Senate the exclusive right to provide advice and consent to the president on treaties and nominations. The concept of “advice and consent” can be traced back to Great Britain and the state governments and was a subject of debate during the Constitutional Convention. Some delegates believed that such a clause compromised the principle of separation of powers by allowing the legislative branch to infringe on the powers of the executive. In The Federalist, numbers 75 and 76, however, Alexander Hamilton argued that the provision afforded a necessary means of checks and balances.
    ***
    The Constitution also provides that the Senate shall have the power to accept or reject presidential appointees to the executive and judicial branches. This provision, like many others in the Constitution, was born of compromise. In debating the issue, the framers addressed concerns that entrusting the appointment power exclusively to the president would encourage monarchical tendencies. Additionally, as the Senate was to represent each state equally, its role offered security to the small states, whose delegates feared they would be overwhelmed by appointees sympathetic to the larger states.

    This isn’t solely about politics, nor was it in 2016 (when Obama nominated moderate Merrick Garland to succeed Scalia in the hope the GOP Senate might accept him). This is about the checks and balances of our system — and of divided government, or the lack thereof.

    DRJ (aede82)

  93. @14. More irrelevant whine dripping from the bottom o/t deck. Neutering the modern ideological conservative movement is the goal. SCOTUS is essentially irrelevant when you’ve set upon the path of losing both the Senate and the House while hoping your own party nom loses to the other party. Those few farts on the court do die you know. SCOTUS s about expanding rights; not inhibiting them. If the court ruled water must run uphill, it won’t.

    The mid/long range outlook: glorious.

    DCSCA (797bc0)

  94. It is hard to kill an ideology, even a failed one. Communism still has its advocates and conservative ideas will stick around, too — even more so since they work.

    DRJ (aede82)

  95. This was RBG’s statement to her granddaughter:

    My most fervent wish is that I will not be replaced until a new president is installed…

    I felt that even she believed that the appointment, and the position itself are political. I believe that this is the wrong way to look at the Court. Butit’s seems to be where are now, more than ever before.

    Dana (292df6)

  96. The nominations are purely political now, and politics is part of DC. But the process of checks ana balances anticipated partisanship and is a way to resolve disagreements and issues that arise within the branches.

    DRJ (aede82)

  97. @99. Glorious.

    DCSCA (797bc0)

  98. Time123 (235fc4) — 9/22/2020 @ 11:11 am

    I don’t agree that BLM is a violent marxist organization.

    I know we’re hand waving away the “mostly peaceful” protests as some sort of situation where the real BLM goes home before the violence starts. But you haven’t seen BLM accost people? Or the comment by Patrisse Cullors about being a trained marxist and that being the ideological foundation of BLM?

    frosty (f27e97)

  99. @100. It was an arrogant, egocentric statement by a taxpayer salaried government bureaucrat. She was believing her own press clippings.

    DCSCA (797bc0)

  100. She wished for a result, much as you wish for the end of conservatism. We all have futile wishes.

    DRJ (aede82)

  101. of course you can, or you make the opposition nearly irrelevant, if needs must you put the opposition in prison, see francois fillon,

    bolivar de gris (7404b5)

  102. ot, they seem to be trying to get the mandalorian, out of the mandalorian, seriously,

    bolivar de gris (7404b5)

  103. DCSCA (797bc0) — 9/22/2020 @ 12:05 pm

    I don’t think she made the statement. I think something from the script for her bio-pic was leaked.

    frosty (f27e97)

  104. well her cohort has grown to a degree, in her caucus, and opposition has weakened with the exception of massachussetts where a kennedy couldn’t beat markey, a kang vs. kodos situation

    bolivar de gris (7404b5)

  105. It was an arrogant, egocentric statement by a taxpayer salaried government bureaucrat. She was believing her own press clippings.

    Well, I might be inclined to put it a little more delicately than DCSCA did, given that she’s still lying in state in Washington, but I do think there is a lot to be said that RBG’s reluctance to retire might very well have had something to do with her enjoying being an icon and perhaps being concerned that once she stepped down from the Court she might be quickly forgotten. She would have been feted by all of the proper leftist organizations and she would have collected her share of “Woman of the Century” and “Heroes of Feminism” awards for twelve months of so after stepping down, but had she left in 2015 she would have had five years of not being at the center of action, and I wonder if she didn’t want to face that prospect.

    JVW (ee64e4)

  106. Speaking of crazy plot twists

    Good morning, Sunday morning

    More bugs in the matrix?

    frosty (f27e97)

  107. Clay Travis
    @ClayTravis

    Max Kellerman said on @espn this morning that “right wing agitators” are rioting across America. MSESPN gonna MSESPN, y’all. This company has totally lost its way. All over again.

    https://www.outkick.com/max-kellerman-blames-right-wing-agitators-for-protests/
    __ _

    ESPN hasn’t ‘lost its way’, they’re totally on board the Biden/Harris bandwagon, as are other folks who should know better.
    _

    harkin (d6570a)

  108. To my mind, the arguments on this thread only serve to confirm my opposition to lifetime appointments and affirm my support for term limits to all branches of government–executive, legislative and the judiciary.

    We already have term limits on the executive–two terms, eight years. If it were up to me, I would place similar term limits on the legislature and the judiciary. Say, twelve years–two six year terms for a senator, and six two year terms for a representative. I see no reason why the same limit should not be put on judicial appointments–twelve years.

    What these lifetime appointees do is cling to their seats long past their retirement age. It disrupts the political process, because they hold their seats until death, desperately favoring one party over another in choosing a replacement.

    That is what is wrong with this system of government, lifetime appointments to the judiciary.

    These justices do not have to run for re-election. I understand the argument that it grants them impartiality, buy I don’t agree with it. Lifetime appointment grants them total partiality.

    We are in this mess we are in today because of lifetime appointments to the judiciary. And it’s not just to the Supreme Court, it’s to all the lower courts as well, which make all the decisions the Supreme Court does not want to hear.

    Oh and by the way, Time123, Texas is the only state that did not have to have Congress grant it statehood. It was an Independent Republic when it agreed to Annexation. That’s why it’s called the Lone Star. In the Annexation Treaty, agreed to by Congress, Texas reserves the right to reform the Independent Republic at any time. It could dissolve itself into five states–north, east, south, west, central–and reform the Independent Republic. There is nothing that Congress can do to prevent it, since Congress agreed to it in the Annexation Treaty.

    No other state has that option. Certainly not California, which was a territory before it applied for statehood. It was granted statehood by Congress, unlike Texas.

    Texas does not need to secede. All it has to do is exert it’s right under the Annexation Treaty to reform an Independent Republic. Which I think it should.

    Gawain's Ghost (b25cd1)

  109. The nominations are purely political now

    Because the SC has become a quasi legislature.

    It’s a bit ridiculous to bring up checks and balances without noting that the judicial branch veered out of its assigned lane many decades ago.

    beer ‘n pretzels (d6c4fd)

  110. As far as Trump’s promise to appoint a female justice, he should watch this video:

    https://www.youtube.com/watch?v=RQa7SvVCdZk&list=RDRQa7SvVCdZk&start_radio=1

    Gawain's Ghost (b25cd1)

  111. 4 more years will let Justice Thomas retire in peace.

    mg (8cbc69)

  112. Last night, less than three days after Ruth Bader Ginsburg’s sudden death, a gleeful Lindsey Graham announced that Republican senators had the votes to replace her. “We’ve got the votes to confirm Justice Ginsburg’s replacement before the election,” he said on Fox News. “We’re going to move forward in the committee, we’re going to report the nomination out of the committee to the floor of the United States Senate so we can vote before the election.”

    https://nymag.com/intelligencer/2020/09/senate-republicans-approve-trump-court-nominee-sight-unseen.html

    As Chait points out, it doesn’t matter who Trump nominates, she’s already approved. The world’s Greatest Deliberative Body is not going to spend any time actually deliberating this.

    So given that the appointment process is purely partisan, and that Trump is openly asking his new nominee to vote for him on any election legal controversy; What exactly is the argument against the Democrats packing the Court? It’s long since time that the fiction the Court is above politics was anything but a fiction. And though both parties had a role to play, it was Mitch’s blockade of Garland even having a hearing that made it painfully clear the road we were on.

    Victor (661f31)

  113. It is hard to kill an ideology, even a failed one. Communism still has its advocates and conservative ideas will stick around, too — even more so since they work.

    DRJ (aede82) — 9/22/2020 @ 11:45 am

    Conservatism stems so easily from skepticism of government. The world is ripe for it. Those ads in Baltimore with Kim Klacik picking up garbage and talking about reform are coming in many different forms and places to tell government to get it together. Trump isn’t the death of conservatism. He is bad for the GOP, particularly the version that wasn’t effective, but that wasn’t really conservatism.

    Neither is Trump.

    It’s a bit ridiculous to bring up checks and balances without noting that the judicial branch veered out of its assigned lane many decades ago.

    beer ‘n pretzels

    Correct. Things keep spinning out of control as both sides try to extract as much political power out of the moment. There’s no routine, no stepping back to see the whole.

    Dustin (c34d2e)

  114. She wished for a result, much as you wish for the end of conservatism. We all have futile wishes.

    I think that given it was RBG saying this about a position on the Court and it was not a seat she owned, that it was much more than a “wish” than any of us might have. It was wholly revealing, not just of view of the Court, but also the vacancy that her passing would create. There was a sense of ownership in her statement, and certainly politics. That the speaker was RBG herself makes her statement far different than any wish we might express.

    Dana (292df6)

  115. @108. I believe she did-it’s right in character.

    DCSCA (797bc0)

  116. @105. Nice try: don’t put words in my mouth; not ‘end’ – containment.

    And in this case, wishes are coming true.

    Glorious. And it took a New Yorker to kick some asses and do it; God bless Donald Trump! 😉

    A few decades on the bottom of the deck won’t hurt you. It’s humbling. It shakes out the dust bunnies and reveals who truly has “principles” after all. You didn’t see hoards of ‘Rockefeller Republicans’ bailing on their party nor overtly an actively working against the GOP nominee [Lincoln Project-George-Will-types] — when the conservative wing ascended for a time.

    For a guy like Biden, no less?! No. They stayed loyal. No so w/t Rabid Righties. Rejecting that ideology was long overdue. So the smackdown stings. What was Buckley’s famed quote about Nixon: ‘So it’s Nixon. What’s all the fuss about?!’ Getting “Bill Buckley-d” into irrelevancy- or straight out of the GOP- is the best thing to happen since the Birchers were sent packing. It’s Trump’s party now. A bridge to some place– o nolace.

    DCSCA (797bc0)

  117. ^or no place.

    DCSCA (797bc0)

  118. Diane fienstein and joe mansion say they oppose enlarging supreme court. So here comes statehood for d.c., puerto rico and virgin islands.

    asset (089e91)

  119. And though both parties had a role to play, it was Mitch’s blockade of Garland even having a hearing that made it painfully clear the road we were on.

    That’s certainly one way of looking at it, and quite a legitimate one at that. But at the same time, an equally legitimate retort would be that all of this dates back to the astonishingly cynical hit job that Democrats did on Robert Bork. That set the stage for Supreme Court nominations as scorched earth warfare.

    And in a more current vein, I get how people are rightly accusing Lindsay Graham of going back on his 2016 words; I think he’s handled it poorly. But if I were he, my retort would be quite simple: that the appalling way in which Democrats and the media treated Brett Kavanaugh reset his (Graham’s) entire outlook; from that moment forward he has come to understand that raw and naked power politics are the order of the day for Chuck Schumer and his allies; and that the GOP would be stupid not to respond in kind. In fact, if Graham were as deft at trolling Democrats as his party’s leader is, he might start referring to President Trump’s eventual nominee as “Kavanaugh’s revenge.” That might resonate with wavering Republican Senators.

    JVW (ee64e4)

  120. Unlike Gardner and others, Romney can’t be dinged for hypocrisy because he wasn’t there.

    Paul, what hypocrisy?

    ZERO Z.E.R.O. presidents have failed to send up a nominee whenever they could. And the Senate almost always confirms it’s own and opposes the other side’s. (17-2, and 1-9 respectively).

    Anything OTHER than what they did in 2016 AND what they are doing now would be abnormal.

    Kevin M (ab1c11)

  121. In fact, if Graham were as deft at trolling Democrats as his party’s leader is, he might start referring to President Trump’s eventual nominee as “Kavanaugh’s revenge.” That might resonate with wavering Republican Senators.

    That would be good marketing. It feeds the conservative sense of persecution…of course that was a response to blocking Garlad….which was a response to Obama’s abuse of executive order….which was a response to obstruction…which was a response the elimination of filibusters on judges…which was a response to a massive increase in filibusters on judges…which was a response to the british…which was a response to the french…which was a response to the romans..and on and on.

    I think this get’s worse before it gets better.

    Time123 (457a1d)

  122. @125

    And in a more current vein, I get how people are rightly accusing Lindsay Graham of going back on his 2016 words; I think he’s handled it poorly. But if I were he, my retort would be quite simple: that the appalling way in which Democrats and the media treated Brett Kavanaugh reset his (Graham’s) entire outlook; from that moment forward he has come to understand that raw and naked power politics are the order of the day for Chuck Schumer and his allies; and that the GOP would be stupid not to respond in kind. In fact, if Graham were as deft at trolling Democrats as his party’s leader is, he might start referring to President Trump’s eventual nominee as “Kavanaugh’s revenge.” That might resonate with wavering Republican Senators.

    JVW (ee64e4) — 9/22/2020 @ 2:06 pm

    Erm, he’s constantly bringing up Kavanaugh as to one of the reasons why he changed his stance.

    I don’t see any hypocrisy on his part.

    whembly (c30c83)

  123. Time123 (457a1d) — 9/22/2020 @ 2:17 pm

    This is the perfect time for you to start advocating for D’s to back away from the ledge. Maybe talk D’s out of revenge for RBG.

    I’ll help. I think we should reinstate the original filibuster. Let’s get it done.

    frosty (f27e97)

  124. 129 Democrat base will kick off the ledge any dino squish democrat who doesn’t thirst for revenge. Base is fed up with wimp democrats and want AOC to lead the party into battle.

    asset (089e91)

  125. of course that was a response to blocking Garlad

    Kavanaugh, IMO, went over the line. Garland just did not get a SCOTUS seat. Kavanaugh was personally attacked as a rapist in front of his daughter, based on the a psychologically disturbed witness whom the Dems manipulated.

    Bored Lawyer (7b72ec)

  126. I do want to see one of these Title IX cases get to the Supreme Court and hear Kavanaugh ask some pointed questions about due process.

    Kevin M (ab1c11)

  127. Erm, he’s constantly bringing up Kavanaugh as to one of the reasons why he changed his stance.

    Yeah, you’re right. Thanks for setting me straight. I’m seeing some interviews he did yesterday where he brought that up, though of course the usual outlets such as the New York Times are poo-poohing this as being an insincere justification for his change of heart. But it looks like local media is giving Sen. Graham the benefit of the doubt as to his sincerity.

    JVW (ee64e4)

  128. Base is fed up with wimp democrats and want AOC to lead the party into battle.

    Well, the GOP evaded having Pat Robertson in 1988, and Pat Buchanan several times. Maybe the Dems can hold off their crazies, but after cheating the hard left out of the nomination twice, they are going to try the “we weren’t batsh1t enough” gambit. It worked so well for Goldwater and McGovern.

    Kevin M (ab1c11)

  129. I hope this is a lesson for the GOP. When you opt for meaningless pablum to explain your behavior, you will be held to the same childish standards for all time. Tell it like it is: “Garland is a show-stopper, there is no way we are going to alienate our base like that. It would be like the Democrats confirming an anti-abortion candidate when they could run out the clock.

    Kevin M (ab1c11)

  130. @119-Dustin Conservatism stems so easily from skepticism of government.

    Close. Conservatism stems from skepticism of your fellow man. “If men were angels…” and all that.

    Jerryskids (702a61)

  131. Kevin M, at #8: seems like a bad idea. If _Marbury_ was wrongly decided, then so were _Brown_, _Roe_, and _Lawrence_, since they all relied on judicial review.

    aphrael (a2b3a3)

  132. @131. Drunks usually do. By his own hand, it is so.

    DCSCA (797bc0)

  133. .@128. You need glasses and a hearing aid. South Carolina’s Senator Vasoline Yesbutt could makes excuses for Hitler.

    And in his own way– he is.

    DCSCA (797bc0)

  134. Finally! Confirmation that the Samuel L. Jackson Nick Fury is the son of the WWII Howling Commandos Sgt. Nick Fury, in “The Punisher” (2016) #218. I don’t get how monophthalmy runs in the family, though.

    nk (1d9030)

  135. The constitution allows congress to set the size of the court. It’s just as fair (and harmful to the country) as what the GOP is doing right now.

    How is something unfair or harmful when it has happened 29 times, and in 26 of them been decided EXACTLY as it will be decided this time? Because Democrats and conservatives who hate Trump more than they love conservatism are upset? That they threaten this time to trash the Supreme Court as an institution if they don’t get their way?

    Sorry baby, no candy. Cry your eyes out and if you keep it up there’s a spanking waiting.

    Kevin M (ab1c11)

  136. I don’t get how monophthalmy runs in the family, though.

    Ol’ Nick married T’Challa’s aunt. This will come out later.

    Kevin M (ab1c11)

  137. Kevin M, at #8: seems like a bad idea.

    Bad, as in phenomenally terrible.

    Kevin M (ab1c11)

  138. Justice Kennedy was nominated by Regan and approved by a Dem senate in 1988.

    Justice Kennedy was NOMINATED in 1987, after Bork was rejected and the other Ginsberg self-destructed. The vacancy actually occurred in June of 1987, almost a year and a half before the election. Despite Democratic foot-dragging on both Bork and Kennedy, Kennedy was confirmed February 3, 1988.

    It is generally not considered a final-year appointment. Doing so would have set new standards for “election year.”

    Kevin M (ab1c11)

  139. Conservatism stems from skepticism of your fellow man. “If men were angels…” and all that.

    No, if you really distrusted your fellow man, you’d want a LOT of government. What it is, is a distrust of the people who are attracted to power, e.g. the government. Our system was set up to frustrate them.

    Kevin M (ab1c11)

  140. The ideological split at the DC & 9th Circuit probably wouldn’t be as pronounced

    The 9th Circuit is closer to balance now than any time that I can remember. By my count there are 16 D’s and 13 R’s among active judges and 11 R’s and 7 D’s among senior judges. Two of those senior Rs are Nixon appointees, so it’s hard to say where they align.

    But it’s not the People’s Republic Court any longer, and rather more to the Right than the coastal states themselves.

    Kevin M (ab1c11)

  141. @145.No.

    It’s just anal.

    DCSCA (797bc0)

  142. The Republic was abolished on April 12, 1861. A republic that needs a civil war to keep it together is not a republic.

    No, it’s just not a confederation, but a nation, after that point. The United States, never These United States. But it’s a republic.

    Kevin M (ab1c11)

  143. The Lead CNN
    @TheLeadCNN
    .
    @ChrisCoons on Supreme Court vacancy:

    Will appeal to the ‘consciences’ of Republican colleagues.
    __ _

    Stephen L. Miller
    @redsteeze

    You accused the last nominee of unsubstantiated gang rape.

    Take your appeal and walk off a pier.
    __ _

    harkin (d6570a)

  144. ** 66

    Between November 4, 2014 and January 3, 2015, a new Supreme Court justice could have been confirmed in the lame duck session, if the Democrats nuked the filibuster rule for Supreme Court nominations. I think that was only done by the Republicans later.

    Sammy Finkelman (2cb3c3) — 9/22/2020 @ 10:35 am

    That was when I read, some people wanted RBG to retire, At that time or at some other time she said words to the effect: Who would you prefer to me? And, maybe not at the same time, that after Obama there will be another president (just as good) Maybe she meant she’d live long enough so that she would get another chance to retire when they liked her to.

    She mentioned at some point that Justice Stevens retired at 90 (and he lived till 99 I think, so he was still alive and in good health when she said that)

    Sammy Finkelman (2cb3c3)

  145. I found a link which is new to me and doesn’t say anything about after the November 2014 election. RBG said no ne as liberal as her would get confirmed

    https://www.nytimes.com/2020/09/21/magazine/ginsburg-successor-obama.html

    Erwin Chemerinsky, dean of the law school at the University of California at Berkeley, wrote an op-ed for The Los Angeles Times in March 2014 urging Ginsburg to step down. “I feared the Republicans would retake the Senate in November 2014, and it seemed so unknown what would happen with the presidential election in 2016,” he told me recently. “If she wanted someone with her values to fill her seat, the best assurance was to leave when there was a Democratic president and Senate. Obama could have gotten anyone he wanted confirmed at that point.” Ginsburg’s decision to stay “was a gamble.”

    In an interview with Elle Magazine in the fall of 2014, Ginsburg said that “anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided.” No one as liberal as she was could get confirmed, she suggested. She noted that her work production hadn’t slowed. “She had beaten the odds every day of her life and had weathered serious illness in 1999 and 2010,” Resnik says. “Fairly, from her perspective, she saw herself as able to manage the health challenges of aging.”

    Sammy Finkelman (2cb3c3)

  146. The graveyards are full of indispensable people. — Charles DeGaulle

    nk (1d9030)

  147. Supreme Court justices probably do have big egos but they are important people. Maybe hubris explains RBG’s decision not to resign when a Democrat was President, or maybe she felt she would live longer. She had lived with cancer a long time and the lifespan estimates for cancer patients vary a great deal. Further, it appears that many of the Justices care about the Court as well as politics. Resigning to promote a political goal would add to the politicization of the Supreme Court.

    DRJ (aede82)

  148. DCSCA,

    If you want me to think your goal is containing conservatism instead of eliminating it, maybe you should avoid using words like “neuter” — aka to castrate or eliminate.

    DRJ (aede82)

  149. Paul, what hypocrisy?

    I support Romney’s decision and I recognize the precedents but anyone who can’t recognize Graham’s hypocrisy either is unfamiliar with his statements or is beyond the ability to discuss matters reasonably. I’m not sure which category you fall into, Kevin M, but you really ought to familiarize yourself with Graham’s 2016 statements before asking a question like that. It’s one of the most blatant examples of hypocrisy I have ever seen in my life.

    Patterico (115b1f)

  150. DRJ, at 153: if she was trying to minimize additional politicization of the court, she would have hated this spectacle. :{

    aphrael (a2b3a3)

  151. Pat, I am well away of some foolish statements by Senators who forget that Google is forever. But anyone with a room temperature IQ understood the dynamic.

    The HISTORY of this is absolutely clear, and it as Romney said. 28 or so times, a seat has opened up in the presidential year (or even after the election), and EVERY time the President nominated someone. Only once (1968) has the person not been confirmed when the president and the Senate were of the same party, and only once has the person BEEN confirmed when the president’s party did not control the Senate (usually in that case no vote is taken).

    What I would point out, rather than hypocrisy, is the utter intellectual dishonesty of claiming the history is otherwise, and using foolish Senatorial statements as squirrels.

    Kevin M (ab1c11)

  152. I note that Patterico was adamant that Garland not be given a hearing, but I don’t think he used the “we must wait” argument.

    I also note that some really smart people said some really dumb things in 2016. Such as Ted Cruz:

    http://patterico.com/2016/03/07/ted-cruz-op-ed-not-until-the-people-have-spoken/

    Kevin M (ab1c11)

  153. *well aware

    Kevin M (ab1c11)

  154. Time123 (457a1d) — 9/22/2020 @ 2:17 pm

    This is the perfect time for you to start advocating for D’s to back away from the ledge. Maybe talk D’s out of revenge for RBG.

    I’ll help. I think we should reinstate the original filibuster. Let’s get it done.

    frosty (f27e97) — 9/22/2020 @ 2:33 pm

    Sounds fine to me. What would be the offer?

    Time123 (80b471)

  155. The constitution allows congress to set the size of the court. It’s just as fair (and harmful to the country) as what the GOP is doing right now.

    How is something unfair or harmful when it has happened 29 times, and in 26 of them been decided EXACTLY as it will be decided this time? Because Democrats and conservatives who hate Trump more than they love conservatism are upset? That they threaten this time to trash the Supreme Court as an institution if they don’t get their way?

    Sorry baby, no candy. Cry your eyes out and if you keep it up there’s a spanking waiting.

    Kevin M (ab1c11) — 9/22/2020 @ 6:08 pm

    Because 4 years ago, the GOP said loudly that vacancies that occur close to an election year shouldn’t be filled until the people have a chance to vote. I know you don’t care that they said that. But I promise you, your counter part on the left is extremely focused on that part of it since it was just 4 years ago.

    They also pick up on the delight the right feels in sticking it to them. You spelled it out with the part I put in italics.

    You can put your fingers in your ears and pretend that your argument is persuasive but the left will view this as hypocrisy and a naked use of power. As you would if the situation were reversed. They will react like your would. People like you will be part of the reason that the system continues to break. The GOP knows what their base wants; a pro-life judge and a chance to count coupe on the left. So that’s what they’ll give. It doesn’t have to be this way, but it’s what you want.

    Time123 (b4d075)

  156. DRJ, at 153: if she was trying to minimize additional politicization of the court, she would have hated this spectacle. :{

    aphrael

    True. My hope is she imagined the response to her death would be the same as the response to Scalia’s death, and it would have if the Democrats controlled the Senate.

    DRJ (aede82)

  157. I was thinking – rather than having rules written in sand, which abets this “take all you can, when you can” philosophy, why not have bright-line rules that are *not* easy to change?

    Legislate the filibuster – together with any restrictions or exceptions.

    Legislate a time window within which a presidential nominee must receive an up or down vote (the time allotted could be longer or shorter depending on the post involved).

    Legislate that changes to other rules do not take effect until the next Congress is seated.

    Dave (1bb933)

  158. The Founders had the same debate. Federalists wanted big government and thought the Constitution was enough, while the anti-federalists were less trusting of government and wanted specific rules. Hence the Bill of Rights. We’ve been adding laws and rules ever since.

    DRJ (aede82)

  159. The junior senator for illinois thinks they are ‘dead traitors’

    Bolivar di griz (7404b5)

  160. @154. Nice try. Neuter means neuter. Rain doesn’t mean precipitation anymore than conservatism means evil. But feel free to follow the Bircher out the door– along w/t Buckley’d Mr. Will.

    DCSCA (797bc0)

  161. @152. And Charlie’s one of them. 😉

    DCSCA (797bc0)

  162. Revealing comment, DCSCA.

    DRJ (aede82)

  163. I am finished talking to you at this website.

    DRJ (aede82)

  164. For everyone else, note that Trump is a John Birch Society President — including his conspiracies and advisers.

    DRJ (aede82)

  165. JBS & Trump? I don’t think so. Maybe equally wacky, but the Birchers had some rather fixed ideas about race and religion that Trump doesn’t have, and argued that the only way to fight Godless Communism was through authoritarian government.

    Or at least this was what I got from some conversations I had with John G Schmitz in the 70’s when we were taking the same summer class.

    Kevin M (ab1c11)

  166. Hence the Bill of Rights. We’ve been adding laws and rules ever since.

    One of the arguments against the Bill of Rights was that by listing rights, those not listed would be disparaged. And, despite the 9th and 10 Amendments (the “ink blots”) this has happened.

    Some of the ones listed have been disparaged, too.

    Kevin M (ab1c11)

  167. By the way, I think that the best way to ensure that the Democrat Party shrinks to a permanent minority would be for them to try to pack the Court. Right up there with the GOP trying to ban all abortions.

    Kevin M (ab1c11)

  168. @170. ROFLMAOPIP And to think we we’ve been told repeatedly he was just the opposite: Putin’s lap boy.

    You don’t get it- or do and can’t accept it– yet. Conservative ideologues- in fact, all ideologues- are irrelevant these days. Welcome to the world ‘Rockefeller Republicans’ endured for decades. It’s Trump’s party now. The next few decades will be an education.

    DCSCA (797bc0)

  169. … the Birchers had some rather fixed ideas about race and religion that Trump doesn’t have, …

    Please elaborate.

    DRJ (aede82)

  170. A White, Christian Country

    Kevin M (ab1c11)

  171. Murkowski flips.

    Kevin M (ab1c11)

  172. And to think we we’ve been told repeatedly he was just the opposite: Putin’s lap boy.

    Kinda like the black guy who wanted to join the Klan.

    Kevin M (ab1c11)

  173. @176. A ‘White Russian’ ?!?! =hic= 😉

    DCSCA (797bc0)

  174. @177. “No” really does means “yes”?!?!

    Hilarious.

    DCSCA (797bc0)

  175. She makes Lindsay look decisive.

    Kevin M (ab1c11)

  176. A White, Christian Country

    You think that is unlike Trump and his supporters?

    DRJ (aede82)

  177. @177, not worth the pain for her to make a symbolic (or principled depending on your POV) stand.

    Time123 (80b471)

  178. @182, How is being submissive to Putin inconsistent with Trump’s white nationalist tendencies?

    Time123 (80b471)

  179. @181. LOL She struck the feminist blow; then came the blowback.

    DCSCA (797bc0)

  180. Kevin M – imagine the court overturns Roe and states start banning abortions. Dems respond with court packing. Who becomes the permanent minority then?

    aphrael (a2b3a3)

  181. >My hope is she imagined the response to her death would be the same as the response to Scalia’s death,

    The implication here is that she expected the Senate leadership to show more integrity than it has, and ultimately the failure was thinking too highly of, and respecting too much, political opponents who didn’t deserve it.

    aphrael (a2b3a3)

  182. 184. I don’t think it is inconsistent. Some white nationalists admire dictators because dictators often use monolithic nationalism to unite their followers. So does Putin.

    DRJ (aede82)

  183. Frankly, aphrael, if she really expected this to happen (and I doubt she did) then she misjudged the importance of politics in the Senate. The Court may be shielded from the bulk of politics but not that much.

    DRJ (aede82)

  184. Who becomes the permanent minority then?

    Democrats, because they will lose seats in Congress, the Senate, and probably the White House. And the GOP may undo the Court packing.

    DRJ (aede82)

  185. @186. Nah. The court is about expanding rights, not taking them away. They’ll go into pretzel mode on maintaining choice but won’t ‘stop’ abortions any more then if they ruled water must now run up hill.

    DCSCA (797bc0)

  186. When my father passed away from cancer (that he had for years), the end was sudden. He was active, taking care of himself, and seemed fine until the last 2 months, and then health-wise it was like falling off a cliff. I have seen it that way for others, too. Maybe it was like that for RBG.

    DRJ (aede82)

  187. @188, exactly.

    Time123 (b4d075)

  188. You think that is unlike Trump and his supporters?

    I think that Trump has some supporters like that. I also think that Biden has some Maoist supporters. Harris may have some black supremacist supporters — there are probably as many of those as actual white supremacists. See Watchmen for that fantasy.

    Kevin M (ab1c11)

  189. But most Americans are neither racial supremacists or religious bigots.

    Kevin M (ab1c11)

  190. Kevin M – imagine the court overturns Roe and states start banning abortions. Dems respond with court packing. Who becomes the permanent minority then?

    That all depends on who wins the war.

    Kevin M (ab1c11)

  191. My hope is she imagined the response to her death would be the same as the response to Scalia’s death,

    Um, Obama nominated Garland. The Senate did not consider the nomination due to political needs. This time they WILL consider it for the same reason.

    So, same. Just like the other 20-some-odd cases.

    Kevin M (ab1c11)

  192. DRJ,

    The one person (a friend’s father) who passed from pancreatic cancer went like that. He was fine until the last month, as they could slow the spread down with drugs like thalidomide and control the effects with other drugs. Then it all fell apart.

    From what I have seen, medicine has become very good at holding life together, but then a confluence of issues overwhelms and death follows shortly.

    Kevin M (ab1c11)

  193. This just in: Trump appoints Merrick Garland. Graham first to support!

    “Yeah, that’s the ticket!”
    –Joe Izuzu

    Kevin M (ab1c11)

  194. In short, RBG thought her death would be different.

    Kevin M (ab1c11)

  195. >My hope is she imagined the response to her death would be the same as the response to Scalia’s death,

    The implication here is that she expected the Senate leadership to show more integrity than it has, and ultimately the failure was thinking too highly of, and respecting too much, political opponents who didn’t deserve it.

    aphrael (a2b3a3) — 9/23/2020 @ 10:27 am

    RBG’s idea that a president should not use one of his most important powers is appealing because I don’t like or trust Trump and wish he had no powers and was in prison. But as appealing as it is, I don’t see how it’s reasonable to tell someone they shouldn’t do what the constitution says they can do.

    Even though there’s an election coming, that just means the next president appoints judges soon. The current president has the power to shift the Court… of course RBG doesn’t get to forbid that. I’m trying to imagine Scalia signing a will expressing his desire that his seat only be appointed by the president after Obama. Of course that is the same result, but the notion that Scalia could order Obama not to replace him would have come across a certain way.

    Dustin (4237e0)

  196. I was amused as I deleted a request for money from Susan Collins.

    Kevin M (ab1c11)

  197. You think that is unlike Trump and his supporters?

    I think that Trump has some supporters like that. I also think that Biden has some Maoist supporters. Harris may have some black supremacist supporters — there are probably as many of those as actual white supremacists. See Watchmen for that fantasy.

    Kevin M (ab1c11) — 9/23/2020 @ 12:46 pm

    While this is likely true is a country of 350 million people there is a huge difference in the way the extreme left views Biden/Harris and the extreme right views Trump. There’s a similar difference in how Trump/Biden view their fringes. When it comes up, Biden clearly disavows left wing extremists and makes clear he isn’t a socialist. If Trump his forced to say anything negative about the alt right he spends the next 10 minutes making clear he doesn’t think they’re that bad and attacking their mutual enemies. It’s part of why the Klan loves Trump.

    Time123 (c9382b)

  198. The difference between Biden and Trump is that Biden has a lifelong record of commitment to America, American values, and American institutions, while Trump has a lifelong record of commitment to what satisfies his gonads, his belly, and his delusional sense of himself. It’s the secret of Trump’s success in a way, because that describes his supporters too. They recognize their species when they see it.

    nk (1d9030)

  199. As for the “hypocrisy”, how else do you govern a people who like their chocolate sugar-coated?

    nk (1d9030)

  200. Voter Registration is surge by 40,000 after the Death of RBG It’s not likely a good news for Trump that this is mostly among younger women. How important this actually is will depend on where they’re from. 24,000 additional dem voters in California won’t change the Electoral College count.

    Based on a morning consult poll there has been a substantial (+12%) increase in the number of Dems who view the SC as a very important issue which should help turnout for Biden if the Dems in the senate can avoid being monstrous to whoever Trump nominates.

    Vote.org, a nonpartisan nonprofit that allows people to register through its website, saw more than 40,000 new voter registrations on Saturday and Sunday, a 68% increase from the prior weekend, according to its spokesman.

    Just over 62% of those they helped register were female. Those who registered the most through Vote.org were between the ages of 25 and 34. Close to 25% were between the ages of 18 and 24.

    Democratic voters have largely shown their enthusiasm for the coming election with their increase in campaign contributions. They raised at least $100 million in the days following Ginsburg’s death, according to data from ActBlue. A Morning Consult poll shows a rise in importance of the Supreme Court for Democratic voters following Ginsburg’s death. Only 48% of Democrats surveyed said they looked at the Supreme Court as a “very important” issue prior to her death, compared with 60% afterward. About 54% of Republicans that were polled say that the court is a “very important” issue for them.

    Time123 (b87ded)


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