More and more conservatives are making the case for not confirming any new Supreme Court justices if Hillary Clinton is elected president. Of course, they try to veil their motivation for this in various ways. For example, some argue that a smaller court would somehow do less harm. You’ll have to judge for yourself whether that makes any sense, even in theory.
Of course, this won’t happen if the Democrats win a majority in the Senate. In that case, they’ll respond to any refusal to allow a vote on Supreme Court nominees by changing the rules to eliminate the filibuster. The filibuster was already weakened by Harry Reid in order to fill out empty slots on the federal appeals courts, as well as to clear a backlog of blocked executive branch nominees. And, obviously, it won’t happen if Donald Trump is elected because the Republicans will forget these arguments faster than they concocted them. If the Democrats block Trump’s Supreme Court nominees (or even his executive nominees), the Republican-led Senate will likewise kill the filibuster.
Either way, if the filibuster remains at all in the next Congress, it is likely to only exist for blocking legislation.
And this is deplorable in the sense that it demonstrates how broken our government has become, but it’s also a natural consequence of the Court becoming a proxy for resolving problems the legislature proved incapable of addressing. In the 1950’s, the Court had to take the lead on civil rights because Congress couldn’t do the right thing. In the early 1970’s, the Court led the way on reproductive rights because Congress couldn’t do the right thing. No less of a supporter of reproductive rights than Justice Ruth Bader Ginsburg is on the record saying that Roe v. Wade gave “opponents of access to abortion a target to aim at relentlessly” and “that it seemed to have stopped the momentum that was on the side of change.” She didn’t like the reasoning of the case, either, but that’s largely irrelevant at this point.
The big losses for conservatives (ending Jim Crow, a ban on school prayer, constitutionally protected abortion rights) all came (at least initially) from Supreme Court rulings rather than landmark legislation. And, therefore, the Conservative Movement has sought to control the courts since they cannot roll back the clock using legislation.
Since I think the conservatives have been wrong in every case here, I still blame them for thwarting progress and decency, but I also see that the point we’re reaching now was inevitable. The Courts became politicized because they basically banned conservative thought on race and human sexuality, and now we’re just going to have our rulings decided by politicians rather than independent judges. If the Democrats win, they’ll appoint whomever they want, and they’ll want people who will uphold longstanding precedent on abortion rights and voting rights, etc. If the Republicans win, they’ll do the exact opposite. The minority party will no longer have the procedural right to veto anyone, and the result will be a Supreme Court that is basically a time-lagged and staggered reflection of previous elections.
The only real hope here is that if Clinton wins and gets to replace not only Scalia, but Kennedy and perhaps a disgruntled Thomas, that the resulting 7-2 pro-choice majority will be so daunting as to put the anti-choice forces to sleep as a political force.
People won’t stop feeling the way they do, but maybe a major American political party won’t see the upside in pandering to a demoralized base that no longer can see any light at the end of the tunnel.
The current 4-4 court is deadlocked. The R’s are trying to send all controversial cases through the 5th circuit starting with some nutjob District Justices in TX. This leads to the 5th deciding Rethug priorities with the supremes deadlocked its the rule of the circuit. This causes issues with other circuits but they don’t care ( See Obama Immigration, etc )
The next thing is the current ages of the remaining 8.
Ginsberg 83
Kennedy 80
Bryer 79
Thomas 68
Alito 66
the rest under that.
If Ginsberg goes, they won’t replace her. 4-3 court in their favor.
The damage they can do with that until Kennedy goes is pretty dramatic.
If there’s a 7-2 liberal majority … is there anything stopping the Republicans from packing the court with 6 new members to create a 7-8 vote, when the Republicans eventually gain control of the Presidency and Senate?
FDR won a huge landslide in 1936, much bigger than anything Hillary could do, and tried to break the S.Ct. deadlock by passing a law allowing him to appoint a majority of S.Ct. This “packing plan” was so wildly unpopular it backfired as a naked power grab. It not only failed, it cost the Dems. majority support in 1938 elections. That wouldn’t stop GOP today however. They’d do it and dare the opposition to do anything about it.
NYTimes CNN Parts Ways With Donna Brazile, , a Hillary Clinton Supporter
The politicization of the Supreme Court isn’t driven by a couple of decisions 45 to 60 years ago. It’s driven by the Republican move to “party over country” where they use any tool for partisan advantage regardless of their responsibilities and the consequences for the country. This was put in place in the 90s with the Whitewater witch hunt and the blue dress, continued through Gore vs. Bush, and on into the extreme filibustering under Obama. Now it’s spread to totally shameless treatment of the Supreme Court.
What this election has revealed, which I find really scary, is that most Republicans would align with Satan himself in order to control the levers of government. As optimistic as I generally am, I now see a very real possibility that we will descent into banana republic territory.
True and ask yourself what happens when they eliminate the Supreme Court.
That or suspend an election. Hell, what Comey did places us very close to (if not over) the line.
Oh, poppycock. The Court has always been politicized. Look at the 1886 decision in Santa Clara County v. Southern Pacific Railroad. That was the decision that made corporations people for purposes of the 14th Amendment. The actual words were inserted in the Headnote of the case written by the Secretary of the Court. It was never even mentioned in the case itself and certainly never spoken by the Justices, but they have always treated it like a binding precedent because it has suited their purposes (help corporations) without requiring them to actually be responsible for it. Look at the decisions of the Lochner era, the whole Gilded Age, the New Deal. All the way back to John Marshall, for FSM’s sake.
A long time ago I took Con Law from Archibald Cox, special prosecutor during Watergate and Solicitor General under Kennedy.
He also was lead counsel in Bakke.
But he did not believe in the line of substantive line of cases that began with Griswold. He argued the court was right to intervene aggressively on race given the country’s history and the intent of the 14th Amendment.
But longer term he worried about the specter of Courts taking issues from the democratic process. He had me read a book “Democracy and Distrust” which advanced a similar argument.
I don’t agree with him – I think Roe was right to be decided in the Courts – but I think he was right about the long term impact.
We need Constitutional Amendments on Abortion Rights and Gay Rights and economic regulation. These need to be taken from the courts.
Or we need to so decisively win the issues with the public that they aren’t contested.
Because government by judicial fiat will never feel very right in a democratic country.
Give us the legislatures to ratify those Constitutional amendments, and we can be done.
That was his argument over 30 years ago.
If Roe was overruled an Amendment would pass reasonably quickly.
Alan Dershowitz has made similar arguments about Roe being wrong as it short-circuited the solid political momentum at the time that was happening in state lege’s around the country to legalize abortion. Roe, within a few years, also helped create the massive political backlash on the right.
(btw, the author of that book Cox recc’d, John Hart Ely, was named as a young man as a staffer on the Warren Comm’n; it was the young lawyer staffers on that dubious body which did most of the research work. Later he got a nice reward with a teaching or deanship at Stanford Law.)
Ely was brilliant – but died young. It was a really great book.
He was dean at Stanford.
An opportunity that even a non-attorney can envy.
Three stories:
So the next morning I get a note in my mailbox – he wants to see me. I go to see the guy – in his office is a picture of him and Kennedy in the Oval Office. He said I had done a “good job” – the best complement I have ever gotten in my professional career. He gave me a book that turned into an note for LR.
He also told me that most everything after clearly is a lie.
Wonderful. The best teachers are the ones that relish challenging students.
Did have a chuckle over “Well I guess you wouldn’t given where you went to college” he said IN OPEN CLASS. . Not that it wasn’t rude and inappropriately dismissive which isn’t to be admired of Cox. But because it’s such an east coast, Ivy League conceit. He wouldn’t have gotten away with that with SC Justices Douglas or Black. And it should just die and be buried considering the GWB went to Yale and Harvard and he’s an idiot.
That was his point – we weren’t training to be therapists. He told a story about how Douglas just ripped into him one time.
Bush’s Harvard degree would have offended Cox – a sign the business school wasn’t tough enough. You weren’t getting a law degree unless you earned it.
Impressive personal note indeed. I remember being excited when I first heard the news that Archie Cox, elite of the elite in law and with a liberal background, was going to be the special prosecutor in Wgate. He would get to the bottom of what happened if anyone could.
Then when Nixon fired him, seeing the graffiti around campus “Impeach the Coxsacker!”
I wouldn’t have thought his classroom demeanor would have resembled the bow-tie wearing John Houseman character in Paper Chase, given his soft-spoken public demeanor, but perhaps Cox was the inspiration.
I have a feeling JFK would have named him to the SupCt but for Kennedy needing to reward that conservative Dem guy from CO who’d helped him in the 60 campaign, and maybe he felt by 1962 that he had already appointed too many Harvards.
The Houseman character was based on Clark Byse -who taught contracts and who was an absolute asshole.
Schumer’s boneheaded strategy of running up his own totals and not the number of Democratic Senators will come back to bite.
Failing to take the Senate in this election will be political malpractice of the highest order by the Democratic Party, given the gift that Trump’s nomination was to them.
Are they so used to losing they’ve forgotten how to win, or does winning spoil their post-political careers?
This is a historic opportunity that is being blown.
It’s inexcusable.
This should be a 15 point win with the House and the Senate following suit.
And along came Comey.
1930 was an “historical opportunity” and Democrats took full advantage of that opportunity and delivered for the subsequent two decades.
1964 was a mixed opportunity bag, but on domestic policies LBJ took full advantage of it.
1974 was another one but mostly blown by Democrats in the subsequent three elections. Which set the standard for Democrats for the subsequent twenty-four years.
2008 was the historical opportunity. Blown shortly afterwards.
2016 was a potential historical opportunity, but the Democratic Party chose to go a different way.
With each passing year my admiration from Johnson grows.
Just the opposite for me. And there’s worse to come about him, probably next year in book form from an established academic author. If she manages to stay alive to finish it. Will keep you posted …
A very high hurdle to jump over. The Vietnam War was such a disaster in all ways that it wiped from the consciousness of the general public his phenomenal accomplishments. He’s not even given credit for mostly coming around on the Vietnam War while still in office.
A few weeks ago I read the first few chapters of Caro’s “The Passage of Power.” It left me teary-eyed for the greatness in LBJ combined with the deep flaws that had been bestowed on him. It also reawakened my dislike for RFK. Apropos the Ivies right school snobbery, JFK and his “best and brightest” squandered a real opportunity by treating LBJ like shit.
fladem, Why should this be a 15 point win? How can you say that? Isn’t it because Hillary Clinton is the candidate that the forecast is so bleak? The Democrats are obsessed with the glitz and Hollywood. The Guardian online has a photo of Hama Abedin descending airplane staris as if she’s Sophia Loren. When will people get it through their heads: Clinton can’t even overcome someone like Trump. Why? Someone above remarks ‘and along came Comey’. I’d say that once upon a time ‘along came Bernie Sanders’ who the polls then said would beat Trump hands down. There’s your 15 point lead. Clinton can now withdraw and hand everything over to her fantastic choice of vice-president. Just the fact that she and her family ran a so-called charitable foundation while she was Secretary of State should disqualify her. I don’t care who said there was no conflict of interest: there had to be. Witness her insane server setup.
The GOP is ready to come apart at the seams. They are running the worst candidate of the modern era. We have a POPULAR sitting president.
Bernie had his own problems – but I now believe he would have been a better candidate.
But my god what I wouldn’t give to have Biden at the top of this ticket.
It would have been the same or worse with either of those candidates. There’s no misdeeds in the email business; it’s a purely manufactured scandal. If Biden had run and won, they’d have manufactured a scandal for him (like they did with the “plagiarism” so many years ago), and also mercilessly exploited his gaffes. If Bernie had run, they’d have turned him into a Soviet agent planning a 15 trillion tax increase. The problem is not the actual problems of our candidates (which are minimal), it’s the nonsense generated by right-wing noise machines like Judicial Watch with multimillion dollar annual budgets, and the eagerness of the media to spread their nonsense.
Agree that the Repubs would have manufactured scandals against any Dem nominee not named Joe Lieberman, but Biden’s plagiarism was not manufactured, if memory serves. And it was repeated speeches, not one, and not just from that Brit pol, where he was found to be lifting others’ speeches. RFK’s for instance.
She was caught in several outright lies about the emails.
She said there were no confidential emails.
She said she had clearance to use a private email server.
I don’t think there was a crime here that should have been prosecuted, but this was a fuckup she brought on herself.
As with the private speeches to GS et al.
Self-inflicted wounds.
Probably agree on Biden. Most of his baggage is very ancient history, and the Trump campaign would have been stymied making too much of the old plagiarism scandal given Melania.
I voted Bernie in the primary, preferred him as our nominee, especially as he came w/o the heavy hawkish FP load H brings, but I was under no illusion it would be easy for a socialist to make it all the way to the WH.
I think Senator Sanders refusing to release his taxes (and yes it was a refusal given that he kept pushing it back until it no longer mattered) and his forays into rape fantasy writing back in the 1970’s would have somewhat inoculated Trump against the two scandals that have hurt him the most during this campaign – his taxes and what he said in that Billy Bush interview.
Clinton has bad judgement with her email.
Biden has campaign discipline issues.
I don’t believe anybody, not even Bill Clinton or Obama or FDR or Reagan (to use an example from the R side) in their heyday could get a 15 point win in this atmosphere. The country is simply too divided now.
Bill Clinton couldn’t even get 50% against Dole.
But has there ever been a more ridiculous and disgusting GOP nominee than Trump?
Bernie’s great, but you’re making a ton of assumptions here. We’d be hearing about Burlington College, his wife Jane’s role in it, and a bunch of other stuff that wouldn’t be relevant because that’s what cable television does. He’d be answering questions about his background and being pestered for more tax disclosure. He did well, but gained a lot of beneficial converge from being not-Hillary in the anti-Clinton press.
Additionally, you are assuming because he was popular on the left and early polls showed him beating Trump, that everybody would jump on his bus. I just don’t think this is the case, especially once the Republican hit machine starts to whir. Anecdotally two of my conservative Fox watching family members voted early for Hillary this week (which is amazing). They can’t stand Trump, don’t trust Hillary, but never ever would vote for a tax-everything socialist.
Clinton is unpopular – Bernie isn’t. There was a substantial gap between her numbers and Bernie in June.
I have no idea what was going on with his taxes, but against Trump it would be a non issue.
I am well aware of Bernie’s past: but having seen Clinton in action I am now convinced he would have been a better general election candidate.
Clinton was up 9 in August. Then she spent two weeks in the Hamptons chasing money and holding few public events, and the race closed. She won the first debate, but the effect of that looks like it is fading.
She is a pathetic candidate who has run a terrible campaign.
Sanders hasn’t been vetted like Clinton. Like I said below once he was there is no telling where his popularity would have been. I will also repeat that the fact that he wrote some rape fantasy literature back in the 70’s would have inoculated Trump against his statements to Billy Bush. How would Sanders refute that when he himself wrote “A woman enjoys intercourse with her man — as she fantasizes being raped by 3 men simultaneously.” Sure there is more context to that but you don’t think that quote would be played endlessly on a loop in comparison to the endless loop of what Trump said on that bus?
Never was possible, because it relied on Republicans not voting for the Republican candidate. From the point of view of Dems, Trump is a monster who never should have gotten the nomination, therefore all Republicans, if they have a conscience, should vote against him. But, from the point of view of Republicans, it could never be 15% or even 10% because that would require massive numbers of Republicans to repudiate their party and candidate, and go against everybody they know in their community who is supporting Trump.
It looks right now as though Hillary was headed for a 5% win before this Comey nonsense. Maybe it will be 3% or 4% now, maybe no change.
Republicans don’t have a conscience. Not like that they don’t. Comey probably won’t influence things at all. He provides an excuse for Conservative whites who WANT to vote for a Republican to vote for Trump, because Hillary’s emails. But, they were drifting back to Trump anyway. His numbers were creeping up in every poll. 538.com states that Hillary’s lead, which peaked at around 7% is now down to around 4.7%.
Hillary has fallen from 49.8% at her peak to around 49.2% now. Barely any change. But, Trump has grown from around 42% to 44.5% now. The election has barely moved at all in terms of popular vote.
That is entirely due to Republicans coming home to Trump because they are Republicans. It doesn’t matter what Trump does or says!
We’re right back to around the same election as 2012 because you can run a fascist for President and 90% of Republicans will vote for him anyway.
I think your argument ignores the substantial movement to and from the couch, the ones sitting out an election.
If Gallup is right in measuring voting intent and the historical relationship between intent and voting holds, the participation this year will be low, around 50%. I can’t find a figure on the size of this year’s voting population but going with participation rate from earlier elections and the general population (including minors) lands me at 120 million votes. 49% of that is 59 million, 10 million less than the 69 million votes Obama got in 2008. And Trump at 53 million, 7 million less than McCain and Romney.
So, if this holds a ten percent win could have been won against Trump by getting the voters who once voted Obama. Even more if you include with the population increase.
Looks like before Comey she was up 3, not 5.
This is close. You are dead wrong about your read of the popular vote.
“And this is deplorable in the sense that it demonstrates how broken our government has become, but it’s also a natural consequence of the Court becoming a proxy for resolving problems the legislature proved incapable of addressing. In the 1950’s, the Court had to take the lead on civil rights because Congress couldn’t do the right thing.”
Because the Democrats had pushed through the filibuster very specifically and deliberately to block civil rights legislation. To suggest or even imply otherwise is blatantly dishonest and biased.
Wth, who needs a Supreme Court. Let the district courts handle it and save some bucks. Besides each area in the country is different. It’s a little like states rights you know. I mean is there anyone who could change that?
The important point is WHY Conservatives block everything:
Accordingly, any means by which the despised people: black, brown, Asian, Native American, Women, gays, etc. take and hold power is illegitimate & probably illegal.
Conclusion: Conservatives need to be in charge of the S.Ct. Nothing matters except raw power. There are no rules that cannot be broken, no institutional restraints that can block conservatives from getting what they want, because they are right.
So what if not confirming any S.Ct. judges for a President from the opposing party completely destroys 200 years of rules about how government in America works. That’s not important. What IS important is that we win! Period.
This is what the last gasp of white male privilege looks like- ugly, violent, and probably quite lengthy. I don’t mean “last gasp” in a hopeful way- enormous and maybe irreparable damage can still be done in the protracted period of waiting for demographic change to overpower this resistance.
Agree w/both of you, and it’s damn depressing.
The answer is really quite simple, which is why Republicans are frothing at the mouth now. Hillary Clinton can appoint liberal judges who will rule that “scientific” gerrymandering is racially discriminatory, and worse, that it violates equal protection and due process clauses of the U.S. Constitution and therefore is unconstitutional. Then the Federal Courts administer redistricting like they did school busing under consent decrees to create the maximum number of competitive districts. This takes redistricting out of the hands of the politicians and puts it in the hands of judicially appointed panels.
At that point, the alt right loses everything. They cannot take over the Republican party and inherit 1/2 of the country, because in fair districts an election like this one would lose them 50-60 seats if it wasn’t for gerrymandering. This would force the GOP to appeal to moderates, which would force them to stop relying on white racists in the South and in rural parts of Pennsylvania and Ohio for instance.
Suddenly, the Eisenhower/ George Romney wing of the GOP springs back into life. Moderate Democrats would win election too as there would be fewer safe Blue districts as well.
With all their cheating efforts blocked by the Courts, the GOP would be FORCED to moderate its positions to appeal to more moderate voters. Even some non-white people. Gasp!
If it were going to be impossible for Democrats to break the stranglehold Republicans have over government, they would be a lot more smug about this election instead of tearing their hair out over Trump’s horrible campaign.
They know what we know. 2 or 3 appointments to the S.Ct. and filling up the Courts of Appeals will make it impossible for Republicans to hold onto the House permanently. And that is really their hold on power.
With the House, Democrats could govern and win public approval for fixing things. And if they didn’t, then Republicans would have a chance – but not a chance to change all the rules to favour themselves once they get in charge. A chance to prove they can do better over the next 2 years.
Right now, the GOP won’t change, can’t change and will never appeal to anybody who is not a white christian conservative, preferably rural, and not well educated.
And there lies the way to the banana republic, that invites a strong man post the trashing of the constitution.