Home / General / The Senate and the Court

The Senate and the Court

Comments
/
/
/
872 Views

la-na-ted-cruz-supreme-court-20150722

We’ve been hitting this point for months, but once again, if the Democrats don’t take the Senate, Republicans simply will not allow Hillary Clinton to name a justice to the Supreme Court, and very few if any to the lower courts. John McCain’s “flub” from last week saying this out loud was of course a flub only in that it was a little early to talk about it. But it’s certainly the plan.

In a stunning political move, conservatives are already strategizing on how to block any future Supreme Court nominee from moving forward during Hillary Clinton’s presidency before the election even happens.

“I don’t think there is precedent for it. It really does reveal just how politically charged and polarized our judicial politics have become,” said Charles Gardner Geyh, a professor of law at Indiana University who advised then-Sen. Joe Biden (D-DE) during the 1991 confirmation hearing of Justice Clarence Thomas. “We are at risk of losing legitimacy as a nation in terms of being able to govern effectively.”

A number of Republican lawmakers and scholars have already begun openly rationalizing why Clinton shouldn’t be allowed to appoint Supreme Court justices. (These are many of the same people who argued President Obama shouldn’t get a nominee in the last year of his term because it should be up to the person who wins the November election.)

Sen. Ted Cruz (R-TX) told reporters that the Senate would have a “debate” about whether to accept Clinton’s nominees and that there was nothing wrong with having just eight justices.

“You know, I think there will be plenty of time for debate on that issue,” Cruz told the Washington Post, when he was asked if the Senate would move forward with Clinton’s nominees. “There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have.”

Cruz’s suggestion that the Supreme Court may continue to operate without another justice under Clinton also casts the stakes of U.S. Senate races across the country in a new light. If Republicans do hold the majority, will they follow Cruz’s lead and refuse to move forward with any of Clinton’s nominees no matter the nominee’s record or qualifications?

I fail to see how this is stunning, unless you still believe that Mitch McConnell cares about Senate traditions. What’s stunning is that reporters would find this stunning. This is why it’s not more important to win the Senate than the presidency, but it is almost as important.

FacebookTwitterGoogle+Share
  • Facebook
  • Twitter
  • Google+
  • Linkedin
  • Pinterest
  • DAS

    I wonder if there is any way for Clinton to make some last minute political hay out of this?

    • yet_another_lawyer

      Anybody who cares enough to be motivated by this is already highly likely to be a decided voter. If anything, it may drive GOP turnout, as it’s motivation to vote for a republican senator even if they can’t bring themselves to vote for Trump.

    • mds

      yet_another_lawyer’s take notwithstanding, we’re currently looking at a Senate nailbiter in Pennsylvania, which has been a Democratic state at the Presidential level since 1992. That means people who have consistently voted for Democratic presidents are apparently planning to split their tickets this time. And they’re doing so in order to vote for the very guy that McCain was supporting with his “gaffe” about keeping Clinton from appointing any Supreme Court Justices. So yeah, at the very least I would hope the Clinton campaign finds a way to make focused use of it in PA, and possibly NH. Because it’s not all GOP voters disgusted by Trump that are making those races so close.

      • That means people who have consistently voted for Democratic presidents are apparently planning to split their tickets this time.

        That’s got to be the stupidest damn thing I’ve ever heard. Seriously. Not you, but people who think its good politics to keep the obstructionists in power.

        • Murc

          Conversely, we’re going to be relying heavily on ticket splitters to even have a ghost of a chance in some other Senate races, people who mark “Trump” but then vote for the Democrat for Senate.

          • mds

            If we can’t even count on reliable blue Presidential states to elect Democratic senators, getting single-term red state Democratic senators because Trump is uniquely horrible isn’t going to be all that much help. Especially given how 2018 looks like another horrible bloodbath because of red-state Dems. And the Indiana election is a special case anyway. Besides that and the Missouri longshot, what other safe Trump states are Dems hoping go D downballot?

            From what I see, D-leaning voters are much more likely to split their tickets on general principles, because they’re still bringing ping-pong paddles to a gun fight. I remember those long-off times of 2015, when we were looking at the Senate map and speculating at how we might sweep WI, IL, OH, PA, NH, and FL. And right now, PEC has Clinton winning five of them, while only WI and IL are looking solidly in the bag for the Senate.

        • smartalek

          people who think its good politics to keep the obstructionists in power.”

          Respectfully (really, no snark), this assumes facts not in evidence.
          A huge swath of citizens, many of them voters, are repeatedly reported not even to know that the Congress is currently in the hands of the Publicans. A significant fraction doesn’t know that the Congress is where the gridlock originiates, and even among those who do, a good portion have been persuaded by the “both sides” rhetoric of Our Liberal Media.
          (I won’t even mention the fact that over 70% of the American populace reportedly believe in the literal existence of angels.)
          How much blame should be imputed to these people for their ignorance vs how much should be assigned to our corporate conservative media and their deliberate campaign of mis- and dis-information, is up in the air.

          • LeeEsq

            Blame the people. Even if we had a very different media, most people would not pay close attention to it because most people aren’t really that into politics or policy. They would watch something on Netflix or TV when the news was on.

            • cpinva

              “They would watch something on Netflix or TV when the news was on.”

              when I was a kid, the news was on the tv at 6 & 11, every night, and we got not one, but two papers daily, the wp & the local paper, and they both were read through. of course, this was back in the late 50’s, 60’s and early 70’s, but I still read the news every day, now from multiple sources online.

              we were not the exception, we were sort of the norm. but then, that’s back before news broadcasts became “profit centers”, and entertainment. if you wanted entertainment, you didn’t watch the news.

          • brewmn

            Some of it should go to people who get quoted saying nonsense like:

            I don’t think there is precedent for it. It really does reveal just how politically charged and polarized our judicial politics have become

            When it’s beyond obvious that only one side is doing the polarizing. Any statement that doesn’t lay the blame for our polarization and gridlock squarely at the feet of the Republicans is worthless either as analysis or as a proposal as to how to solve it.

        • Rob in CT

          Non-politics junkies don’t necessarily know that things don’t work like they used to. The idea used to be that divided government produced something resembling moderation. A lot of folks hold to that.

          Of course, highly invested partisans know that this has totally broken down. But the non-junkies won’t listen to us on this, because we’re partisans and therefore we’re biased…

      • NewishLawyer

        I would say that most loyal Democrats probably vote straight-down but would need to do research.

        The problem in Presidential years is that the Democrats seem to win by also getting just enough moderates on their side. This includes this year when so many people are turned off by Trump but probably still are conservative at heart.

  • mds

    “There is certainly long historical precedent for a Supreme Court with fewer justices.”

    Tell us when, Ted, you mendacious greasy bag of pig shit. Be specific. And no, gibbering ahistorical fuckwittery from syphilitic dog’s anus David Barton doesn’t count.

    Just Googling alone suggests that this is a farcial claim:

    1789-1807: 6
    1807-1837: 7
    1837-1863: 9
    1863-1866: 10
    1866-1867: 9
    1867-1869: 8
    1869-2016: 9

    So, by long historical precedent, he means something that hasn’t been the case for almost a hundred and fifty years. Yeshua Herschel Christ, at some point can Harvard Law sue for defamation?

    • scott_theotherone

      So we haven’t had fewer than 9 since the 1860s. Huh. What else happened during that decade? I could swear there was a dramatic event or two around that time…

    • wjts

      Ah, but your list omits all the times in the last 150 years that the court’s numbers were temporarily reduced by death or retirement. Check and uno, sir!

      • mds

        Check and uno, sir!

        … the Republican pundit declared, standing up triumphantly from the Connect Four game.

        • wjts

          …in which he had, in an historical personal best performance, managed to get two disks of his own color in the same row with only four of his opponent’s disks in between.

    • cpinva

      “Yeshua Herschel Christ, at some point can Harvard Law sue for defamation?”

      I think the problem here is their acceptance standards. after all, they let him in, and then worse, let him out. he didn’t become a douchebag overnight, he’s apparently been pretty much a douchebag since he was a zygote. Harvard brought this on itself.

    • smartalek

      They said he was smart.
      They never said he wasn’t a mendacious, evil, demented piece of shit.

    • LWA

      Huh.
      So according to this, there is a long historical precedent in having 10 Justices.

      So Hillary should be able to appoint 2 Justices then.

  • yet_another_lawyer

    In a stunning political move, conservatives are already strategizing on how to block any future Supreme Court nominee from moving forward during Hillary Clinton’s presidency before the election even happens.

    I fail to see how this is stunning, unless you still believe that Mitch McConnell cares about Senate traditions. What’s stunning is that reporters would find this stunning.

    I don’t think it’s stunning in the sense that journalists are actually stunned, but that it’s a journalistically “neutral” way of saying, “Can you believe these assholes?” “Unprecented” is also good for this, except then it devolves into a largely-pointless politifact debate about whether something that happened one time in 1829 counts as a “precedent”.

    • “Unprecented” is also good for this, except then it devolves into a largely-pointless politifact debate about whether something that happened one time in 1829 counts as a “precedent”.

      This reminds me of the moment after the 1st debate when Jeffrey Lord pioneered new ground in hackdom, claiming that Trump’s birtherism was OK because Democrats said Chester Arthur was born in Canada during the 1880 election.

      • mds

        Well, despite the impressive antiquity of that riposte, (1) it’s beaten in the age department by all non-ironic references to “party of Lincoln”, and (2) it’s beaten in the birtherism chutzpah department by the runner-up for this year’s GOP nomination being a first-term senator born outside the United States.

      • mikeSchilling

        That’s ridiculous. During the 1880 election Arthur was already a grown man.

    • guthrie

      Unfortunately, most of the populace doesn’t speak journalese and therefore are either uselessly cynical or think it really is stunning.

  • postmodulator

    I would note, just recently, that Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job.

    Jeez, Breyer did say that. Thanks a lot, nitwit.

    • Peterr

      I’d be more curious about how putting Garland in limbo for the better part of a year has affected the work of the DC Circuit Court of Appeals where Garland is the putative Chief Judge. He quickly announced that he would not hear cases while his nomination was pending, but would continue his administrative work.

  • Rob in CT

    PEC on the Senate as of this morning:

    NH Tied
    NV Heck +3.0%
    MO Blunt +2.0%
    NC Burr +1.0%
    PA McGinty +3.0%
    LA TBD +8.0%
    IN Bayh +6.0%
    FL Rubio +5.0%
    AZ McCain +10.0%
    CO Bennet +10.0%
    WI Feingold +8.0%
    IA Grassley +16.0%
    IL Duckworth +11.0%
    AK Murkowski +38.0%
    OH Portman +15.5%

    • scott_theotherone

      OH Portman +15.5%

      I understand Strickland is not popular, to put it mildly, but JFC.

      • postmodulator

        I described his campaign as “theoretical.” I don’t even know that he’s particularly unpopular, so much as there just isn’t much sign that he’s running.

        • Steve LaBonne

          Don’t even get me started on the comprehensive uselessness of the Ohio Democratic Party.

    • mds

      Well, PA is starting to make me feel slightly better, so I will no transfer the bulk of my “What the everliving fuck” reserve to New Hampshire and Nevada. I mean, sure, Trump is a dumpster fire with a flame-resistant honkable clown nose on it, but the incumbent governor with 56% approval rating wasn’t given privileged information by her husband about a sexual abuse case at Phillips Exeter, so shame on her, I guess.

    • bender

      To Be Determined is ahead by eight points in Louisiana?

  • kped

    Given the age of the various justices, it’s obvious why this is a precedent the GOP will definitely try to implement. I mean, really, if we are being honest, there is no reason the court couldn’t operate with a single judge, it’s not like the divide workload to hear different cases.

    That’s why it’s important for Clinton to have a dem senate majority, and why, after filling the first (and nuking the filibuster), RBG and Breyer must resign in turn, such that Clinton makes 3 liberal appointments before mid terms.

    • Murc

      This.

      I’m not gonna be a jerk about this; I see no problem with Ginsburg and Breyer finishing out the current term. But come this June if they do not leave, they’re playing Russian roulette with the country.

      • kped

        I think they have to finish the current term, and actually stagger it so that they never leave a conservative majority. RBG has to go first due to age (she’ll be 84 next year). But within the first year, there is no reason that they shouldn’t have at least 2 new justices. 3 if they put the country over their egos.

        • Murc

          I think they have to finish the current term, and actually stagger it so that they never leave a conservative majority.

          My understanding is that you can make your resignation contingent on confirmation of your successor. That that’s allowed, so you can continue working if there’s some kind of holdup or bottleneck.

          • kped

            In that case, it makes things easier. Resign right away.

            • David Hunt

              I disagree. If they did this and the GOP thought they could bottle up any confirmation until a Republican President was in the White House they would do anything to make that happen. Afterall, said Justice has officially resigned and is just waiting for a replacement to be confirmed. Is it there fault it took 2 (or 6 or 10) years for an acceptable candidate to make it through the process? [Yes, it would be]. The GOP can always up the obnoxiousness level of their obstructionism…especially in the Senate.

              • so-in-so

                that’s why the making it contingent on a replacement works. If they refuse to consent, it’s just like there was no opening.

    • twbb

      No, the GOP does not want this to be a precedent. You don’t think they’ll accept this kind of thing when they hold the White House and Democrats hold the Senate, right?

      • David Hunt

        The GOP doesn’t let itself be concerned with petty little issues like reciprocal reasoning being applied to them as they applied their opponents. I guarantee if that situation came up, they would be raising hell about how the Democrats were attacking the very foundations of our government, etc, etc. They’d even have the benefit of being correct. Just like the GOP is attacking the foundations of our government now by holding up Obama’s nominee without even holding a hearing, let alone voting on him.

        Sidenote: even with a Dem Senate and a GOP pres, I don’t think the Democrats would do this, even after what’s happening now. In general, Democrats want government to work. I think GOP nominees would at least be given a vote.

        • mds

          I think GOP nominees would at least be given a vote.

          Yeah, which is the thing that infuriates me so much about the evergreen conservative sharting about Bork. Bork was relentlessly grilled by the Judiciary committee about his suitability, yes … and then despite the committee’s disapproval, was still given an up-or-down vote in the full Senate. Bill Clinton and Obama would have probably been delighted to have more of their judicial nominees treated like that.

          • sibusisodan

            On Bork: I’ve seen video of him being questioned, at what seemed quite a high technical level, by Biden and Kennedy among others. There actually seemed to be strong, fairly rigorous arguments made on both sides.

            My question: is that normal in terms of how the Senate has vetted people in the past? It seems like something beyond the ability of much of current Congress…

            • Murc

              There are plenty of people in Congress capable of that sort of grilling.

              What’s happened is that all modern nominees, and this includes ones made by Democrats, lie their heads off. “Roe vs. Wade? Yes, I’ve heard of it. Vaguely. Couldn’t venture an opinion. Would have to see what happens when a case involving it gets to me.”

              Bork fucked up; he answered questions honestly and had a long trail of scholarship indicating how he wanted to burn down the 4th amendment.

              • Rob in CT

                It really is farcical.

              • sibusisodan

                So people learned the wrong lesson from Bork? Instead of ‘Let’s not nominate a radical’, it was ‘we should all be blank slates, paying due respect to stare decisis’…?

                Who among the Republican Senators would give a highly technical grilling to any Scotus nominee?

                • AMK

                  Ted Cruz. He’s capable in the abstract, but in practice he’s of course far more interested in pseudo-legal posturing.

  • CaptainBringdown

    But, but, national unity government!

  • smartalek

    We are at risk of losing legitimacy as a nation in terms of being able to govern effectively.”

    The sun is “at risk” of rising in the east tomorrow morning.

  • Murc

    I was reading that TPM article earlier today, and hoping Scott would post on it.

    It’s a very good article in many ways, but it is also, I think, reflective of a larger problem in all of the many good articles that have and will be written about this issue; namely, that it is about process and procedure, rather than about policy and consequences.

    Process and procedure are very good things to write about, because they need to be understood. But they’re not, I think, where this battle needs to be fought. Because the ultimate Republican fallback position on this is going to be this:

    “No. We’re not going to confirm any of Hillary Clinton’s nominees. We find them, to a person, completely unacceptable to us. Part of our remit as Senators and as Republicans is safeguarding the country from the extremist Democrat agenda, and we will not allow her to pack the courts with people who are going to wage war on our police, protect terrorists at the expense of regular Americans, and destroy our economy at the behest of Big Labor. We find the damage done to the nation by understaffing the courts… if they are indeed understaffed at all!… to be less than the damage caused by confirming her pack of deplorable choices.

    “We are, of course, open to compromise. All she has to do is nominate someone we find acceptable and we’ll confirm them. Someone in the mold of Janice Rogers Brown would be superb.”

    And the thing is I’m not even sure that’s wrong. I mean… its wrong substantively, on the merits. But as a matter of politics, and as a matter of promulgating their preferred policy measures, it has something to it.

    If the shoe were on the other foot, I would absolutely expect the Democrats to block whatever pack of theocrats a hypothetical President Ted Cruz sent to them until he started sending them people who weren’t howling loonies. I would consider the courts being understaffed to be less damaging to the fabric of the country than appointing judges who might be inclined to take Sovereign Citizen arguments seriously and who have a copy of the Federalist Society Constitution (the one that says “suckers” in it) in their back pockets. And I don’t think I’d be wrong in that assessment.

    But basically, I don’t think we should have a process and procedure argument on this, because I think that’s weaker ground and also is an argument-by-proxy, one step away from the real issue. And the real issue will be this: the Republicans have decided they want to implode the court systems because they believe it is the best choice for the country over appointing the well-qualified nominees Hillary Clinton will nominate.

    That is where we want to fight the battle. Not over procedure. Not over whether Congress has the right to vote down nominees serially or understaff the court or the historicity of a variably sized Supreme Court or if this move is illegitimate or not. We don’t want to have the legitimacy argument. We might lose that. We want to have the “No, they’re wrong and this is wrong no matter how procedurally legitimate it might be” argument. We want to have the “This dude is awesome and will bring justice to all the peoples, but the Republicans hate him, because they hate justice, because they’re always wrong” argument.

    That’s the ground we should fight on, I think.

    • smartalek

      I was going to point out that this is a False Choice, and that both arguments have legitimacy.
      But then I remembered, with our corporate mass media, expecting a focus on more than one shiny object at a time is like relying on winning the lottery for one’s retirement plan — but never buying a ticket.

      • Pat

        Republicans will never again win a national election until they return to governing: until they negotiate in good faith with Democrats in order to improve the lot of all Americans.

        As long as they continue with the politics of personal destruction, they will continue to fail, and fail, and fail.

        • twbb

          They ran an obviously incompetent narcissist and are still coming within a few percentage points. There’s a nontrivial chance he can win.

          All the Republicans have learned is that if you throw enough mud and are obstructive long enough it becomes the new norm and neither the press nor the voters hold it against you.

          • Pat

            The only person acceptable to the Republican base was an obviously incompetent narcissist who saw no value in investing in a ground game.

            Without cheating, i.e. gerrymandering and voter suppression, Republicans would have no hope at all of keeping Congress. And that gets harder every year, as more Asian and Hispanic teenagers make it to adulthood, and more women make it out of college.

        • David Hunt

          Democrats can’t keep winning forever. Eventually something will happen that will make them look bad at the exact wrong time in an election year. The willingness of the GOP to sabotage the working of the government from Congress and other places (like the FBI) with the goal of making the Democrats look bad regardless of the effects on the nation increases the cost.

          Plus, the economy could tank at the wrong time, a scandal (real or fake) could break shortly before the election, the GOP could just find a charismatic candidate that excels at dogwhistling instead of saying the quiet parts out loud. The Democrats can’t hold the White House forever. Something is going to happen eventually.

    • Peterr

      If the GOP would speak as directly and openly as you have here, that would be a very different situation than the one we have at present.

      The GOP did not say to Obama “Part of our remit as Senators and as Republicans is safeguarding the country from the extremist Democrat agenda, and we will not allow you to pack the courts with people who are going to wage war on our police, protect terrorists at the expense of regular Americans, and destroy our economy at the behest of Big Labor.”

      No, they said “you only get to make nominations during the first three years of your term.” They hid their disagreements over policy and legal theories behind a pseudo-process argument, and vociferously denied that “safeguarding the country from the extremist Democrat agenda” had anything to do with it.

      If they’re going to be out-and-out liars about their own motives, that’s their choice. They lie about their motives, they lie about anyone nominated by a Democrat, and they lie about the potential consequences of such an appointee. Lying is what they do.

      This is the ground we ARE fighting on, but we are not apparently willing to acknowledge it by calling these lies what they are.

      • Murc

        If the GOP would speak as directly and openly as you have here, that would be a very different situation than the one we have at present.

        This is true, but I do believe that what I outline is going to be their ultimate fallback position.

        Either that, or coming up with excuses so absurd even their own flacks stop being able to say them with a straight face.

        Even if they don’t fall all the way back there, tho, I feel like there would be more value in cutting right through the bullshit and engaging them on more substantive grounds. They’re going to argue that the courts don’t need staffing and other such bullshit en route to their final destination. Fuck that noise. Let’s fight where we’re strongest.

        • mds

          Either that, or coming up with excuses so absurd even their own flacks stop being able to say them with a straight face.

          The OP has Ted Cruz asserting something about the Court that can be demonstrated to be a lie by ten seconds with a smartphone. They’re already rushing exponentially towards “Article XIII of the Constitution plainly states that Democrats may only appoint Supreme Court Justices during months beginning with ‘R.'” I don’t think they’ll ever reach peak absurdity.

    • mds

      Process and procedure are very good things to write about, because they need to be understood. But they’re not, I think, where this battle needs to be fought.

      The problem is, I could see a fight on substance getting bogged down in Supreme Court decisions, which isn’t necessarily fertile ground for Democrats either. The appeal of the process-and-procedure approach is that low-information voters in the mushy middle seem like the sort who would be amenable to arguments about “fair play.” If we aren’t able to point out that Merrick Garland isn’t a bomb-throwing leftist, how are we going to successfully establish that Shelby County, Concepcion, Connick v. Thompson, etc, etc, are morally and intellectually bankrupt policy?

      • Dilan Esper

        This is wrong. Nobody cares about procedure, but majorities like Roe and hate Citizens United.

        The right move is saying a 9th justice will protect Roe and that’s what Republicans are afraid of.

    • efgoldman

      Republicans have decided they want to implode the court systems because they believe it is the best choice for the country

      Correction: Because they believe it is the best choice for them. They don’t give a shit about the abstraction called “the country.”

      • Bruce B.

        It’s more active than that. They’ve defined good for them as including actively bad for others; they’ll pass up their own gains for the sake of making bad people suffer.

      • ScottK

        I think they do care, they’re just very very selective about who they consider to be “the country” – of the Volk, if you will. Since the Founders clearly wanted exactly what modern conservatives want, anyone who disagrees is politically illegitimate and doesn’t really count.

  • Nick never Nick

    I feel like this violation of governance norms has a natural solution, which is also a violation of governance norms — after the Senate refuses to act on a nomination for a certain period of time, the nominee simply arrives at the Supreme Court, takes their seat, and begins to operate as a Justice. ‘Advise and consent’ isn’t a specific procedure. What would the possible response be?

    – John Roberts isn’t going to have a respected jurist dragged out of the Court by baliffs, it simply couldn’t be done.
    – is Congress going to sue the Court? The Court will hear the suit, and there should be a liberal majority to approve of this.

    • Murc

      This isn’t a violation of norms. This is outright lawlessness.

      John Roberts isn’t going to have a respected jurist dragged out of the Court by baliffs, it simply couldn’t be done.

      Assumes facts not in evidence.

      is Congress going to sue the Court? The Court will hear the suit, and there should be a liberal majority to approve of this.

      Why do you think that? The liberals on the court ruled, unanimously, just a few years ago that the Senate may engage in pro forma sessions in order to prevent a President from making recess appointments. What makes you think a sufficient number have backed down from respecting the Senate’s prerogatives since then to rule in your favor? You’d need to get five votes from the current eight justices, starting from zero.

      Also, even if this did happen, the Senate could simply vote the nominee in question down and go “your move.”

    • Young_Hegelian

      Justice Costanza.

    • djw

      and there should be a liberal majority to approve of this.

      It wouldn’t surprise me at all if one or more of the current liberal justices wouldn’t be willing to go along with this. (or what Murc said)

      • ScottK

        Yeah, that’s a fun thought experiment, but I don’t think the current Justices would go along with it. Things would have to get much much worse before it’s even a vague possibility.

        My crazy idea would be that this continues for a couple of years, the SC drops to maybe 6, and hundreds of empty Federal benches* cripple the court system. President Clinton says “Since the Senate is defaulting in their duty, I consider them to be in recess and appoint Justices Obama, Obama, and Maddow to the court.” Then the Senate sues, and it goes to the Court. The new Justices don’t recuse themselves, because they have no obligation to. Those three plus any two who go along just to get functional courts agree, and President wins.

        Of course the next step is “barrage of impeachments” but I disbelieve that there are enough Democratic senators rules-lawyery enough to go along with it in a situation this bad.

        The follow-up is half the country starts openly ignoring Federal courts, the National Guard comes out, and we have at best an existential Constitutional crisis and at worst Civil War II. Which why this is an amusing lefty chuckle scenario and nothing more.

        * Right now there are 111 vacancies with 59 nominees pending.

  • Bitter Scribe

    If any Democrats had vowed to keep Dubya’s nominees off SCOTUS, on the grounds that he actually lost the goddamned election, these guys would have screamed like stuck pigs.

    • mds

      Imagine the squalling, then, if any Democrats had vowed to keep Dubya’s nominees off SCOTUS on the grounds that he actually won the goddamned election. Which seems to be the upshot of McCain and Cruz’s remarks.

  • bobbo1

    The question is, will Clinton actually learn this lesson and not appoint Republicans? One could argue that she reached out to Republicans during the election only to try to expand her voting coalition (though in the final days it seems not to have worked), but isn’t it at least a possible indicator of her governing style?

    • twbb

      She has 8 years of evidence of what that “governing style” gets you from the GOP.

      • efgoldman

        She has 8 years of evidence

        Sixteen years with an eight year interregnum

        • twbb

          Actually, the eight Bush years could be considered part of the evidence.

          • Yes! GWB lost the popular vote, and that didn’t convince him to select a bipartisan cabinet, appoint Democratic/moderate judges, or otherwise cause him to govern from the center in any way.

  • Dilan Esper

    If they actually had the votes to do this, the article would be a lot better sourced.

    I mean, we KNOW that will be Ted Cruz’s position, but he doesn’t control the Senate.

    • Nick never Nick

      I think that Republican politics should be considered as a ratchet — they tighten one way, but don’t loosen the other. Do you see any mechanism that will cause them to become less extreme under a Clinton presidency?

    • (((Hogan)))

      Of course he doesn’t. Jeff Flake does. Everyone knows that.

  • NewishLawyer

    I can see the GOP waiting until either Kennedy, Ginsburg, or Breyer steps down and saying “7 is fine.”

    The problem is that eventually more Justices are going to step down. Can they say 5 or 6 is fine?

    What if Thomas, Roberts, or Alioto steps down first?

    • mds

      What if Thomas, Roberts, or Alioto steps down first?

      Then the GOP pivots to the “tit for tat” argument, and demands that every liberal appointment be balanced by a conservative appointment, with conservatives getting to break any tie, because this is a center-right nation. Then the MSM gets to work slobbering and pissing themselves over bipartisanship while trotting out tired The West Wing references. And I dunno at what point Clinton and Senate Dems finally crack, because unlike the modern GOP, they don’t want to burn everything to the ground in a psychopathic tantrum.

      Can they say 5 or 6 is fine?

      They can say 6 is fine, because current law says 6 is a quorum. Below that, and it becomes fraught. As we’ve seen with the current split, having the SCOTUS no longer adjudicating amongst the Circuits is a two-edged sword.

      • Heron

        Why does this remind me of the pre-war Compromise period?

        Hmm, so if it gets to below 6 could one argue Congressional Republican recalcitrance has become a threat to the Constitutional order?

    • efgoldman

      What if Thomas, Roberts, or Alioto steps down first?

      W picked Roberts and Alito on purpose for their relative youth. Thomas may be another story – who can tell.

      • NewishLawyer

        Relative youth but they are still old enough where health begins to change.

  • ASV

    Out of curiosity, is there any case law that defines what “advise and consent” actually means?

  • Rob in CT

    http://www.cnn.com/2016/10/31/politics/richard-burr-hillary-clinton-gun-owners/index.html

    Another GOP senator (well, hopefully not!) pledges to prevent Hillary from filling the vacancy.

    He also apparently said something about 2nd amendment remedies, but yawn, that’s so normal at this point… ETA: I read the article and based solely on that, meh. Nothingburger on that front, IMO.

It is main inner container footer text