The Biden Rule on Judicial Appointments

Let’s start out by stating an uncontroversial US constitutional principle:

The president’s authority to make judicial nominations, and the Senate’s power to weigh them, is unaffected by the electoral calendar.

Okay – a whole bunch or people are going to argue that this is controversial. But no:

Twenty-five times presidents have made nominations to fill Supreme Court vacancies that arose in presidential election years, and 21 times the Senate confirmed the nominee. The general rule is that when there is a vacancy on the nation’s highest court, the political branches will fill it.

But …

At the same time, the Senate has long observed a narrow exception to that rule—one also guided by constitutional concern—and that’s what was in play in 2016. When the nation chooses a president and a Senate, it makes its choice about who wields the power and bears the responsibility to pick and confirm judges. But when the president and Senate have divergent views on judges and judicial philosophy, there’s no clear mandate on what kinds of judges ought to be confirmed. For well over a century—the last exception was Chief Justice Melville Fuller in 1888, during President Cleveland’s first term—the Senate hasn’t confirmed a Supreme Court nominee chosen in an election year by a president of the opposite party. That’s why, in 2016, Mr. McConnell let voters break the stalemate.

(Emphasis added).

It’s especially ill-suited to 2020. Not only does the same party control the White House and the Senate, but the 2016 and 2018 elections were both unusually focused on the issues of constitutional philosophy and judicial selection, owing to the Scalia vacancy and the Democrats’ smear campaign against Brett Kavanaugh. The voters made their choice, sending Donald Trump to the White House with his list of prospective nominees and a Republican majority to the Senate. There’s no stalemate for the voters to break this time around.

As far as I can see Mr Trump and the Republican dominated Senate have an electoral mandate.

Last issue – why have I titled this piece The Biden Rule? (Emphasis added)

The week after President Jimmy Carter lost his 1980 re-election bid, he announced the judicial nomination of a close ally of Senate Judiciary Committee Chairman Ted Kennedy. The nomination sailed through the Senate, which confirmed the First U.S. Circuit Court of Appeals judge 80-10 less than a month later, six weeks before Inauguration Day. That nominee, Stephen Breyer, now sits on the Supreme Court.

Another bit of history: In 1980, Mr. Biden voted to confirm Judge Breyer.

As always with the left – don’t do as I do.

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62 Responses to The Biden Rule on Judicial Appointments

  1. Some History

    There’s a string of relevant comments from Barry Bummer here

    “When there is a vacancy on the SCOTUS, the President is to nominate someone, the Senate is to consider that nomination… There’s no unwritten law that says that it can only be done on off-years. That’s not in the Constitution text.”

    https://twitter.com/CalebJHull/status/1307325966314864651

    OOPS!
    There’s even this gem by Creepy Joe

    Biden in 2016:
    “I would go forward with the confirmation process as chairman. Even a few months before a presidential election… just as the Constitution requires.”

    https://twitter.com/CalebJHull/status/1307343209031401479

  2. Roger

    There is no principle the Left will not violate in order to attain or retain power.

    Yet another example.

  3. Hay Stockard

    Leftard Rules Matter. Take a knee you freedom lovers.

  4. Democrats wouldn’t be able to pull this crap without the corrupt and immoral media aiding and abetting.
    The media truly are the enemy of the people.
    When Trump first said the media are the enemy of the people, the left went apoplectic and the middle thought he was being his usual hyperbolic rude self.
    Turns out he is 100% correct….yet again.

  5. Mother Lode

    Lefties have a bit of a habit of imagining laws come into existence when they want them.

    I remember how many of them used to talk about Bush’s illegal war in Iraq.

    There are all sorts of objections that could be levelled at that excursion into bluster, but it was not illegal. You could insist that there were no WMD’s but the actual procedures to authorise all the actions that comprised the war were followed. Otherwise the left would have had his head on a plate long since.

    But lefties seemed to always come around to this idea that it was illegal because the UN had not approved it.

    They didn’t like it so, somewhere, somehow, there had to be a law.

  6. Herodotus

    A little off-topic, but can anyone explain how come AOC has power in primaries, such that she is feared by some?

  7. Herodotus

    The media truly are the enemy of the people.
    This has been true in the Anglosphere for quite a while.

  8. Texas Jack

    Nobody on the Left will admit that Ginsberg’s decision not to retire and hand her baton safely during Obama’s presidency was indulgence cubed, but you’d think she was Mother Theresa’s mentor the way the media is wanking on.

  9. rich

    To the left it’s all about power.

    “Make the enemy live up to its own book of rules.” – Saul Alinsky Rule 4

    Hopefully the chivalrous fools on the right side of the aisle don’t fall for it.

  10. Mother Lode

    Nobody on the Left will admit that Ginsberg’s decision not to retire and hand her baton safely during Obama’s presidency was indulgence cubed

    The left were so convinced that they had the 2016 election in the bag. It never occurred to them that there would not be a Democrat President to install an appropriately progressive judge when RBG passed.

  11. Chris M

    Doesn’t matter anyway, Trump is going to win 37 states and 25% of the Af vote.

  12. W Hogg

    I remember how many of them used to talk about Bush’s illegal war in Iraq.

    Strangely none of them talked about Crimton’s illegal war in Iraq.

  13. W Hogg

    Democrats wouldn’t be able to pull this crap without the corrupt and immoral media aiding and abetting.

    Yep. Clinton News Network going on about “McConnell Rule” even though the precedent dates back over a century and that every single modern statement on the topic refers to the hostile Senate precedent.

  14. tgs

    The real question will be if they can find another aisle crosser. They’ve got Collins and Murkowski. If Romney baulks then they only need one more.

    Might be smarter for Trump to make a lot of noise but keep it as a live election issue.

  15. W Hogg

    So far they have Collins, Murkowski, Grassley and one assumes Delecto is a certainty. They can afford 6 for a 47-47 tie, which I assume is breakable UNLESS one of the RINOs votes No.

  16. W Hogg

    Speaking of which, HTF did Mittens ever win his primary??

  17. pat

    ABC says look at us…we have a former Reagan AG as our guest, so we aren’t biased!

    at 2m40s, following Fein’s gushing tribute to the great RBG:
    Swan: even Donald Trump, when he first heard, seem shocked and a little upset.
    Fein: can’t ascribe sincerity to Trump. sociopath, narcissist, had criticised her because she had criticised him in inadvertent remarks in 2016. Trump has been accused by scores of women of sexual predation, harassment, the H’wood access tapes, groping, so his character on gender issues is clear.

    7m17s: Fein: it would be appropriate, during any confirmation process, that Dems should get commitment from the nominee that, if there are any disputes over election, they would recuse themselves. American people would think that was appropriate in any dispute that involved Mr. Trump.

    AUDIO: 8m48s: 21 Sept: ABC Australia: Breakfast: Ruth Bader Ginsburg’s Death Sets Up Political Battle In The US Senate
    Presenter: (Dr.) Norman Swan (in for Fran Kelly)
    Bruce Fein, former Deputy Attorney General under President Ronald Reagan
    https://www.abc.net.au/radionational/programs/breakfast/rbg-bruce-fein/12683892

    what would you expect from Fein?

    on Russia:

    The Doomsday Clock on Trump’s presidency leaps forward
    Last Tuesday, the Doomsday Clock on Donald Trump’s presidency leaped forward one half-hour to 10 minutes to midnight.
    by Bruce Fein
    Aljazeera – 25 Aug 2018
    President Trump epitomises narcissism. He has scorned the adage that he who loves himself will have no rivals. He has virtually no personal friends in Congress willing to fall on a sword for him. Indeed, most members would prefer Vice President Mike Pence in the Oval Office to Mr Trump. Mr Pence echoes the same general policies, but without the vulgarity and venom of Mr Trump…
    President Trump’s ouster from the White House is no longer a question of if but when.

    Donald Trump’s Big Abuses of Power Demand a Big Impeachment
    The framers of the Constitution conceived of impeachment for far smaller violations than Trump has committed.
    By Ralph Nader and Bruce Fein
    The Nation – 12 Dec 2019
    In 2019, the president can inflict irreparable calamities that would have been unthinkable more than two centuries ago. The urgency and breadth of the impeachment articles voted against President Trump should correspond to those alarming risks.

  18. William the Conjuror

    Mitch McConnell and Lindsay Graham on not filling a SCOTUS vacancy in an election year.

    Just hours after Justice Ruth Bader Ginsburg’s death on Friday, Senate Majority Leader Mitch McConnell said President Trump’s nominee to replace her “will receive a vote on the floor of the United States Senate.” But four years ago, when Justice Antonin Scalia died in an election year, McConnell repeatedly argued against even holding a hearing for a replacement.

    The Kentucky Republican notoriously refused to hold a hearing for Merrick Garland, who then-President Barack Obama chose to fill Scalia’s seat eight months before the election. McConnell’s block left the Supreme Court with an empty sear for more than a year, until Mr. Trump’s nominee Neil Gorsuch was sworn in.

    In 2016, McConnell consistently made one argument for not filling the seat: It was an election year, and voters should decide which presidential candidate should pick the next justice.

    Other Senate Republicans followed suit. Senator Lindsey Graham of South Carolina, who is the chair of the Senate Judiciary Committee, said weeks after Scalia’s death: “I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say, ‘Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.”

    There were some differences between now and then. Mr. Obama was in the final year of his presidency, whereas President Trump has a chance for a second term. And Obama was a Democrat, while the Senate that needed to confirm his nominee was controlled by the GOP.

    McConnell, at times, pointed to both of these facts when refusing to give Garland a hearing. But he also consistently argued that “the people” of the United States should decide to fills the court’s vacancy — an argument he isn’t making now.

    Here’s what McConnell said in 2016:

    February 13, statement on the day of Scalia’s death: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”

    February 16, Washington Post op-ed with Republican Senator Chuck Grassley of Iowa: “Given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court. It is today the American people, rather than a lame-duck president whose priorities and policies they just rejected in the most-recent national election, who should be afforded the opportunity to replace Justice Scalia.”

    February 22, press statement: “[W]hile finding the right person to take the seat [Scalia] occupied will clearly be a monumental task, it’s one we think the American people are more than equipped to tackle. Some disagree and would rather the Senate simply push through yet another lifetime appointment from a president who’s on his way out the door…I believe that it is today the American people who are best-positioned to help make this important decision.”

    February 23, Senate floor speech: “The Senate will appropriately revisit the matter after the American people finish making in November the decision they’ve already started making today….[Mr. Obama] could let the people decide and make this an actual legacy-building moment, rather than just another campaign roadshow.”

    February 23, press conference: “The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be.”

    March 16, Senate floor speech after Mr. Obama nominated Garland: “The American people may well elect a president who decides to nominate Judge Garland for Senate consideration. The next president may also nominate someone very different. Either way, our view is this: Give the people a voice.”

    March 20, “Fox News Sunday” interview: “We think the important principle in the middle of this presidential election, which is raging, is that American people need to weigh in and decide who’s going to make this decision.”

    March 20, “Meet the Press” interview: “The American people are about to weigh in on who is going to be the president. And that’s the person, whoever that may be, who ought to be making this appointment.”

    August 6, speech to supporters in Kentucky: “One of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy.'”

  19. Ed Case

    Trump’s being wedged by McConnell and Biden.
    The last thing he needs is a divisive Senate Hearing where Kamala Harris is one of the Committee members.
    He’s already cucked by announcing the nominee will be ”a woman”.
    In the Hearing the Nominee will have to abase herself by saying she would recuse herself if there was any tiny conflict of interest on any issue [read:catholic/abortion] to the point where voters will wonder why they’re taking a day off work to pull the lever for Trump to nominate some hopeless cuck to a job for life.

  20. Zatara

    Biden 2016

    “The president has the constitutional duty to nominate; the Senate has the constitutional obligation to provide advice and consent,” Biden wrote in a New York Times op-ed in 2016. “It is written plainly in the Constitution that both presidents and senators swear an oath to uphold and defend.”

    That’s why I was so surprised and saddened to see Republican leaders tell President Obama and me that they would not even consider a Supreme Court nominee this year. No meetings. No hearings. No votes. Nothing. It is an unprecedented act of obstruction. And it risks a stain on the legacy of all those complicit in carrying out this plan,” he wrote.

    Biden again 2016

    Later in 2016, Biden delivered a speech at Georgetown University and said: “I would go forward with a confirmation process as chairman, even a few months before a presidential election, if the nominee were chosen with the advice, and not merely the consent, of the Senate, just as the Constitution requires.”

    Obama in 2016

    Obama, too, said he had a responsibility to fill Scalia’s seat.

    “The Constitution vests in the President the power to appoint judges to the Supreme Court. It’s a duty that I take seriously, and one that I will fulfill in the weeks ahead.”

    “… as Senators prepare to fulfill their constitutional responsibility to consider the person I appoint, I hope they’ll move quickly to debate and then confirm this nominee so that the Court can continue to serve the American people at full strength.” (as in before the election)

    ………

    “We think the important principle in the middle of this presidential election, which is raging, is that American people need to weigh in and decide who’s going to make this decision.”

    They did. They elected Trump and he’s still in office.

  21. Zatara

    So far they have Collins, Murkowski, Grassley and one assumes Delecto is a certainty. They can afford 6 for a 47-47 tie, which I assume is breakable UNLESS one of the RINOs votes No.

    There are 47 Dems and 53 Reps in the Senate. If 3 Reps decide to commit political suicide and vote against confirmation there is a tie. In the US Senate the Vice President votes to break ties.

    The reason it is so critical at this juncture in history for RBG’s seat to be filled pre-election is that currently SCOTUS is split 4-4 between conservatives and progressives. The Dems will unquestionably challenge Trump’s reelection in court with any scam(s) they can think of and eventually it will arrive at SCOTUS for a decision.

    A 4-4 SCOTUS split is the perfect recipe for a unimaginable shit-storm. A shit-storm which will feed right in to the intentional national chaos engineered by the left and do tremendous further damage to the country and the west in general.

  22. Ed Case

    Mitch McConnell is one of the richest Senators in U.S. history.
    There’s no way Trump can benefit from filling that vacancy, but he’s already lost the politics by not getting out in front of the issue.
    JC said yesterday that it was unbelievable that Trump didn’t know earlier that the old crone has died.
    Yet Trump’s Intelligence is so hopeless that he probably was caught by surprise.

  23. William the Conjuror

    A 4-4 SCOTUS split is the perfect recipe for a unimaginable shit-storm.

    The current SCOTUS ideological split is 5 Republican, 3 Democrat.

  24. Ed Case

    ***There are 47 Dems and 53 Reps in the Senate. If 3 Reps decide to commit political suicide and vote against confirmation there is a tie. In the US Senate the Vice President votes to break ties.***
    That’s not the situation here.
    Collins, Murkowski, Grassley, and possibly Pierre Delecto, have said they won’t vote on the Nomination.
    Only Grassley is on the Committee, so R. can still get up in Committee 11/10.
    On the Senate floor, 4 abstainers still leaves R. winning 49/47 on Party lines if Sanders [I] votes with the D.s

  25. Ed Case

    Kavanagh may be compromised and Gorsuch and Roberts are cucks.
    So, if the election goes to the SCOTUS, Trump is fucked, and he’s only got himself to blame.

  26. I accept your reasoning completely, Lad.

    Similarly, I presume you would have no objection to statehood for DC and Puerto Rico, plus SCOTUS expansion to align its composition with the views of the majority of voters, if Biden wins.

  27. Frank

    He’s already cucked by announcing the nominee will be ”a woman”.

    What is Palin up to these days?

  28. Zatara

    Collins, Murkowski, Grassley, and possibly Pierre Delecto, have said they won’t vote on the Nomination.

    No, they haven’t.
    – Collins said she opposed having the vote, not that she wouldn’t vote.
    – Murkowski said she wouldn’t vote. But that was before RBG died. It’s a new ball game now.
    – Grassly said in July he wouldn’t call a hearing, not that he wouldn’t vote.
    – Romney’s spokeswoman called a report that Romney would insist on delaying the vote until after Inauguration Day “grossly false.” Nothing about him not voting.

    The current SCOTUS ideological split is 5 Republican, 3 Democrat.

    Roberts, one of Bush’s major mistakes, consistently votes against the Trump administration. He single-handedly saved Obamacare. He sided with the liberals on preserving Obama’s totally illegal DACA executive order. He voted down a law limiting abortion. He presided over the abortion of Trump’s impeachment trial letting the left run rampant. He’s a liberal who hid his stripes well.

  29. William the Conjuror

    He’s already cucked by announcing the nominee will be ”a woman”.

    What is Palin up to these days?

    Not a judge, not even a lawyer. Has a journalism degree only.

  30. H B Bear

    Gargooglery pulls out both socks. Triggered.

  31. Leo G

    Similarly, I presume you would have no objection to statehood for DC and Puerto Rico, plus SCOTUS expansion to align its composition with the views of the majority of voters, if Biden wins.

    Separation of powers notwithstanding?

  32. Ed Case

    Here’s the problem:
    McConnell is prepared to throw Trump under the bus just to get a female catholic cuick on the SCOTUS.
    Trump’s best interests would have been served by getting out of the gates early and announcing nthat he wouldn’t make a Nomination until after November 3
    He could have said it would be a very conservative nomination, and even tho that woulda been a total lie, his dumb voters lap that stuff up.
    Too late now.

  33. Mother Lode

    Gargooglery pulls out both socks. Triggered.

    A bit like the “It’s turtles all the way down”, Glroooglargy is socks within socks.

    There is no actual Gargolrgay.

  34. Zatara

    “The Republicans in the Senate and on the campaign trail who are calling for Justice Scalia’s seat to remain vacant dishonor our Constitution. The Senate has a constitutional responsibility here that it cannot abdicate for partisan political reasons.

    – Hillary Clinton before the election in 2016

  35. Mother Lode

    Actually, touching on the turtle thing, Wikipedia relates a story told by Stephen Hawking about Bertrand Russell:

    A well-known scientist (some say it was Bertrand Russell) once gave a public lecture on astronomy. He described how the earth orbits around the sun and how the sun, in turn, orbits around the centre of a vast collection of stars called our galaxy. At the end of the lecture, a little old lady at the back of the room got up and said: “What you have told us is rubbish. The world is really a flat plate supported on the back of a giant tortoise.” The scientist gave a superior smile before replying, “What is the tortoise standing on?” “You’re very clever, young man, very clever,” said the old lady. “But it’s turtles all the way down!”

    I would hardly call Russell a scientist, but I had read the story before. Hawking may well have got it from the same source.

    Wikipedia also records another instance involving Russell that goes:

    If everything must have a cause, then God must have a cause. If there can be anything without a cause, it may just as well be the world as God, so that there cannot be any validity in that argument. It is exactly of the same nature as the Hindu’s view, that the world rested upon an elephant and the elephant rested upon a tortoise; and when they said, ‘How about the tortoise?’ the Indian said, ‘Suppose we change the subject.’

    That may well have been the original story, and the anecdote may well be apocryphal and attributing the ‘silly’ comment to an old lady (would any unlearned and elderly women be more inclined to credit Hindu myths than what had been the commonly held view in England since before she was born?) adding savour to the story by invoking the far fetched nonsense old ladies are emblematic of.

    But the original story (second above) re-affirms my belief that Russell was in fact a very mediocre thinker – that he cannot conceive that God as something transcendental. We know the world is of this world and bound by its rules, but a transcendental God need not (or even could not) be.

    I reached that opinion after reading his ‘Logic and Mysticism’. He could look at mysticism according to logic but did not even attempt to look at logic through the lens of mysticism. Not that I am particularly predisposed to mystical beliefs, but I would consider even a cursory examination of that perspective quite obviously begging.

    I think he was the Chomsky of his time: Famous for being smart by the lights of his era rather than profoundly insightful, putting the intellectual polish on the petty interests of his time.

  36. Herodotus

    The garden needs weeding, Sinc.

  37. Tel

    This all seems perfectly reasonable to me.

    Trump is not really Republican though, he is mostly his own party … if he can get the Senate to back him then all the legality is supports this appointment.

    The fact that Democrats are depending on the “dying ladies last wish” instead of genuine precedent tell me they have nothing decent to stand on … and frankly no one believes that “last wish” anyhow. Like everything else it’s a scam, they only want to fire up their voter base.

  38. David Brewer

    There still seem to be lots of doubts about the positions of the RINOs.

    Here’s how I see it; grateful for any better information from Cats.

    Republicans have a majority, 53 to 47, and the Republican Vice-President can break a tie. So if RINOs abstain, seven of them have to do it for the nomination to fail, 47 to 46. But if they vote against, then only four need to do so for the nomination to go down, 51 to 49. Various combinations of abstentions and no votes yield intermediate results, some of which would be ties that the Veep could break.

    So whether the nomination gets through depends on what the RINOs do at the various stages of the process. From what I hear, the Republicans are confident they can get the nomination through the Judiciary Committee and into the full Senate. But the snag there may be the “cloture” motion to cut off debate and take a final vote. If that hurdle were cleared, the RINOs would have a tough time actually voting against Trump’s nominee, and at the most would probably only abstain. But they may be more likely to vote against cloture than against actual confirmation, on the “principle” that no decision should be rushed through before a new administration is in place. If only four vote “no” to cloture, Trump’s nominee would be finished.

    In the meantime of course we will have another circus of “hearings” where the Dems will pull out all stops to besmirch the nominee. Trump will have to pick a saint with a very thick skin…

  39. Catcalling Inebriate

    Elevation of the Supreme Court appointments to this degree is a plain reflection of failure in the US political system. It is plain now that the primary parties can’t do politics, in the sense that politics is the art of compromise. Dems are owned by Wall St and machine behaviours. Republicans are owned by Trump populism. At some point people will discover that the Supreme Court can’t govern. It might not be before the US slides into a destructive spiral of social division.
    One thing is certain: the US is unlikely to be of much use as China flexes.

  40. Ed Case

    The SCOTUS is no place for a Saint.
    What’s needed is a great Advocate for a literal reading of the Constitution.
    That’s unlikely to be a woman.
    One of Trump’s many problems is that many of his supporters are kooks who would vote for Biden if
    Trump gave them a dose of reality.

  41. Zatara

    David

    I believe you are essentially correct except perhaps about the invocation of cloture. A motion for cloture still requires a simple majority vote to pass. It can be used as a tactical ploy of course but the conclusion will seldom be in doubt.

    I also suspect that should Trump nominate a woman such as Amy Coney Barrett the Dems won’t dare to give her the Kavanaugh treatment because that will unquestionably alienate many women voters.

  42. Another Ian

    Robin Hook on Bertrand Russel

    “What did Russell believe?

    You tell me the year and I’ll tell you what he believed”

  43. Ed Case

    The Democrats won’t give Amy Coney Barrett the Kavanaugh treatment because:
    she’s guaranteed to cuck and become a useless tool of Progressivism, just like every other woman that’s sat on the Supreme Court.
    And she’ll be there 40+ years.

  44. dover_beach

    I accept your reasoning completely, Lad.

    Poor monty. He’s so emotional at the moment he can’t identify the authors of threads.

    Similarly, I presume you would have no objection to statehood for DC and Puerto Rico, plus SCOTUS expansion to align its composition with the views of the majority of voters, if Biden wins.

    Yes, yes, because Presidents nominating justices to SCOTUS and Senates confirming the nominations in an election year never happens. Ever. It’s only happened on 21 out of 25 occasions.

  45. There’s some incorrect assumptions in the comments and some downright false ones.

    * Trump never said his nomination WILL BE a woman. He said MOST PROBABLY a woman.
    There’s nothing wrong with that even if you abhor identity politics like I do. Trump released a list of possible nominees. He said all of them were worthy of being selected for SCOTUS (why else would they be on the list?). The list included a bunch of women. Realpolitik is being practiced here. A woman Justice died, many Americans want a woman as replacement. They are EQUALLY deserving of the job if they are already on the list.

    * Both Obama and Ginsberg stated that it is the constitutional duty of a president to nominate for a vacancy as soon as possible and that the duty of a president is for 4 years, not for 3.
    It is up to the Senate to decide whether to take up the nomination or not. This is not on Trump just like it wasn’t on Obama in 2016.

    * Precedent has been set. In an election year, when the White House and Senate align politically, the vacancy has been filled every single time.
    When the two don’t align politically, the vacancy has been left until after the election every time in the last 100 years or so. Only once (in the 1800’s) has a vacancy been filled when the two places didn’t align.

    * What RGB wanted as a dying wish is irrelevant. The seat doesn’t belong to her.
    Furthermore, anybody who believes that a grand mother on her death bed would be talking politics with her grand daughter instead of family and life issues is a fool.
    It goes to show the extent the Democrats will go to win something. Imagine painting RGB, their saint, as a zealot who would do that. Democrats are evil, even towards their own sainted ones.

    IF she spoke like that, then she is a zealot and her wishes carry zero weight. This is a lose lose for the Dems. It shows how desperate they are.

    * This stupid notion of making DC a state is just that, STOOOPID. The founders established an independent capitol. Australia copied that as we also are a federation. Can’t have the federal government under the rules and laws of one state. That would be STOOOOOPID.

  46. Snoopy

    Kavanagh may be compromised and Gorsuch and Roberts are cucks.

    No worries. Roberts features on passenger manifest(s). Apparently.

  47. Oh come on

    Similarly, I presume you would have no objection to statehood for DC and Puerto Rico, plus SCOTUS expansion to align its composition with the views of the majority of voters, if Biden wins.

    Let’s not pretend there’s a possibility of a transactional arrangement going on here. There is no ‘if you do A, we’ll do B in response’.

    No.

    You were always going to do B. You’ve talked about it for a very long time – long before RBG popped her clogs. The SCOTUS stacking, the dumping of the electoral college, dispensing with the filibuster-proof majority in the Senate…and more. The fact is that the second you have the opportunity to do the above, you’ll do it. Your threats are worthless, because it has long been assumed you’ll do that anyway.

  48. Snoopy

    You were always going to do B. You’ve talked about it for a very long time – long before RBG popped her clogs. The SCOTUS stacking, the dumping of the electoral college, dispensing with the filibuster-proof majority in the Senate…and more. The fact is that the second you have the opportunity to do the above, you’ll do it. Your threats are worthless, because it has long been assumed you’ll do that anyway.

    Perfectly expressed.

  49. dover_beach

    OCO, exactly right. We now expect the worst. The Dems have no scruples. You are now going to get that returned with interest. Watch ya back, Jack

  50. Elevation of the Supreme Court appointments to this degree is a plain reflection of failure in the US political system. It is plain now that the primary parties can’t do politics, in the sense that politics is the art of compromise.

    This is true. This current process started with the Tea Party and their refusal to compromise, embodied by the abolition of earmarks. They kind of had a point about the corruption inherent in earmarks, I give them that. It has proven a slippery slope though: the gridlock has spread and spread all through Congress. Democrats have escalated when Republicans did.

    The end result of a minority seeking to entrench themselves in power results in fascism or civil war. If the only rule is power, things end badly.

  51. This current process started with the Tea Party and their refusal to compromise

    Which they were elected to do so.

    They kind of had a point about the corruption inherent in earmarks, I give them that.

    They were right.

    The end result of a minority seeking to entrench themselves in power results in fascism or civil war. If the only rule is power, things end badly.

    Who has the Senate minority now?

  52. Peter Lang

    Interesting and informative. Thank you Sinclair Davidson.

  53. Arky

    Both sides make whatever arguments are politically expedient at the time, thereby bringing the whole process into disrepute.
    If you are going to find yourself making the opposite argument a few short years later, don’t use those arguments in the first place.
    Say: We have the numbers and the power to do such and such, and our supporters expect us to do whatever we can to achieve it within the constitution.
    Either that, or change the constitution at a time when it isn’t a looming issue and both sides can agree to a change that is fair and reasonable.

  54. Arky

    I come down on the side that says you probably shouldn’t be making any big, non- urgent decisions while in the middle of an election campaign.
    But how stupid would the Republicans be not to take the Democrats at their word from the last time around?
    And how stupid would the Democrats be to ignore the arguments made by the Republicans four years ago?
    So, they have both swapped arguments and are simultaneously pointing the finger at each other and getting their media mates to yell “Hypocrisy”!
    Meh.

  55. nb

    A useful book in relation to this topic, giving data on past nominees for US Supreme Court:
    https://www.regnery.com/custom/supreme-disorder/
    The site includes a pdf datasheet for download with relevant info on all nominees since federation:
    https://dhjhkxawhe8q4.cloudfront.net/regnery-publishing-wp/wp-content/uploads/sites/2/2020/09/21134111/Historical-and-Statistical-Information-about-Judicial-Confirmations.pdf
    A panel discussion that includes the author, Ilya Shapiro, with Carrie Severino, Randy Barnett, and Jan Crawford.
    https://www.youtube.com/watch?v=1jZhVyhUWZU
    The Cato Institute – ‘Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court’
    ‘In “Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court,” Ilya Shapiro takes readers inside the unknown history of fiercely partisan judicial nominations and explores reforms that could return the Supreme Court to its proper constitutional role.
    Still, arguing about the confirmation process misses the heart of the matter: that we now have divergent interpretative theories mapping onto partisan preferences when the parties are more ideologically sorted than any time since the Civil War.’

  56. W Hogg

    * Trump never said his nomination WILL BE a woman. He said MOST PROBABLY a woman.

    Bullshit

  57. Zatara

    Another scenario to keep in mind:

    McConnell puts the Senate into recess.
    Trump makes a recess appointment.

    Badabing badabang. Done deal.

  58. Ed Case

    Problem with that scenario is:
    1. McConnell is out to fuck Trump. He’s up for Reelection this year and faces a tough race to get another 6 years at the trough at age 78. Giving the Dems a golden opportunity to grandstand a few weeks out from polling day may be looked on favourably, if you know what I mean.
    2. Let’s assume Mitch is on the up and up. Trump’s excuse for nominating some female who was born to cuck will be Kavanaugh, blah, blah, whereas he has no excuse for not nominating a Genghis Khan type to a recess appointment.

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