Octopus Overlords

GreenGoo wrote:For the record, I don't think the Dems have this level of obstructionism in them, and I don't think their supporters want them to have it.

What that means as far as political strategy, I don't know. A threat of tit for tat isn't going to work, I don't think.

It depends. The democratic coalition is less Trumpified, and so at the moment would be less likely to maintain a de facto blockade on SCOTUS nominees, but I wouldn't rule it out. Over the long term I think it's inevitable, unless the system changes, that a democratic senate will wind up blockading a Republican president.

And even now, if Trump won the presidency and the democrats took the Senate, I think there would be some pressure to not confirm a Trump nominee, insofar as (in addition to the wide variety of bad SCOTUS decisions that would result, from a liberal perspective) it would also 'reward' the GOP SCOTUS blockade of 2016.

While it is certainly possible that they could do it, or at least try to do it, I'm curious why it hasn't been done before if it is as easy as just deciding to do it.

While that is not a counter argument, what makes it more likely to happen this time than any other time previously? Because they've shown they are willing to do it for a year? Is your position then that 4 years will become 8 years if Hillary is re-elected? Is your position that they will continue to do so in perpetuity until they are in a position to nominate their own? What happens if they lose the ability to refuse? What happens if they lose their ability to force their president's nomination through?

It's not so much that there is a physical impossibility to doing as you suggest, it's that the consequences of doing so are unknown and therefore scary (for everyone, including themselves).

While this is the craziest election in decades, I'm not sure we're at the level of crazy you're suggesting.

Maybe? Probably not?

El Guapo wrote:

Grifman wrote:

Skinypupy wrote:I think you underestimate the crazy. Most Trump supporters I know are voting for him because of the Supreme Court only, and I can't imagine they'd have any issue with holding out entirely until they get their way. It's their biggest (and often only) concern.

They just won't do it. This is crazy talk, as crazy as anything Trumpers come up with. The Senate just isn't going to sit on SC nominees for 4 years, if only because what it would mean for a Republican president in the future. They just can't refuse to confirm anyone for 4 years. They can delay for a year at the end, but not for 4 years. This is just as much crazy talk as Trumpers talking about rigged elections.

I don't find the assertion that they "just can't refuse to confirm anyone for 4 years" very compelling. Why not, exactly? What mechanism is there to force them to do it? Again, they have paid *zero* price (possibly even benefitted) from their SCOTUS obstructionism so far. And yes, again, this is worse, but I'm extrapolating from the data so far which indicates no cost...so it's not obvious to me that the marginal cost for extending it for four years is definitely going to be worse.

Bear in mind that a Clinton nominee means a variety of bad things from the perspective of Republican-aligned voters / constituencies - more liberal decisions on immigration, taxes, business regulation, abortion (which is a little unpopular on the right), and on and on. It's hard to see how any GOP senator is not going to face pressure from the Republican coalition to vote no on Clinton SCOTUS appointees.

I think part of the reason they haven't paid any price is because there is SO MUCH crap going on.So much noise. All the focus is on the Presidential race. When that's done, I think a lot of the noise will fade. And when there is more quiet, this kind of behavior will stand out more.

The SCOTUS will eventually start asking Congress behind the scenes to take some action. The Justices want order in their court.

If the standoff continues too long without a vote, the President will eventually try to appoint someone anyway and let the SCOTUS decide what happens when the Senate tries to intervene.

Carpet_pissr wrote:Is there no law or statute that defines how and how soon a SCJ must be replaced? Surely there is a time limit or time frame specified, if only to avoid situations exactly like this, no?

This is where I'm at. Something needs to be in place to force it, or some penalty for refusal. There is a point at which the Judicial will be unable to function. If they carry it out for four years, then four more, or the Dems respond in kind - I don't want to slippery slope, but there has to be a point at which it stops. There may not be a cost for the Republicans for doing it, but there is a cost to the nation and to the population for it having been done.

And what if another Supreme goes away? If it is a liberal, it becomes even more in the Republicans' favor to keep stalling, as they'll have regained the majority.

I'd love to see a bill that says that if no decision is reached in a certain period of time, the President's recommendation stands (with provisions to prevent 13 months of joke appointments to intentionally invoke it.)

GreenGoo wrote:While it is certainly possible that they could do it, or at least try to do it, I'm curious why it hasn't been done before if it is as easy as just deciding to do it.

While that is not a counter argument, what makes it more likely to happen this time than any other time previously? Because they've shown they are willing to do it for a year? Is your position then that 4 years will become 8 years if Hillary is re-elected? Is your position that they will continue to do so in perpetuity until they are in a position to nominate their own? What happens if they lose the ability to refuse? What happens if they lose their ability to force their president's nomination through?

It's not so much that there is a physical impossibility to doing as you suggest, it's that the consequences of doing so are unknown and therefore scary (for everyone, including themselves).

While this is the craziest election in decades, I'm not sure we're at the level of crazy you're suggesting.

Maybe? Probably not?

Political norms are steadily breaking down over time. The main reason why this hasn't happened before is that there was a widespread view / norm that the President has the right to appoint any reasonably qualified mainstream jurist of his choosing, and that the role of the Senate in its "advice and consent" on this was to confirm that they're qualified and not crazy and whatnot. And yes, the democrats have played a role in breaking down this norm. Robert Bork, who was pretty objectively qualified to be a SCOTUS justice, was the first nominee (at least that I'm aware of) to be rejected by the Senate on ideological grounds - for having (in the view of the Senate) too "extreme" views.

In some ways this is just an extension of that basic concept. A GOP senate wouldn't say that they would not consider any nominee full stop. But they might well take an aggressive view of their role - e.g., you can nominate whoever you want, and we will evaluate and vote, but the Senate is not required to confirm a nominee that they don't like, and disliking their judicial philosophy is a reasonable grounds to reject a nominee. Therefore we, the GOP senate, want to see "strict constitutionalists" on the court.

You can also flip the thinking to highlight how much traditional political customs have kept the wheels of government running. Why would a GOP senate vote to confirm a Supreme Court justice who is very likely to spend the next few decades mostly undermining the GOP policy agenda? The only reason is custom / norms - "this is what the Senate *should* do in general").

Similarly, at the beginning of the country the presidential veto was regarded as something that the president shouldn't use on legislation that he merely *dislikes*, but rather was only for legislation that he viewed as unconstitutional. Then Andrew Jackson came in and started vetoing any legislation he disliked. He was widely criticized for that at the time, but now no one would even think of criticizing a president for doing that. Similarly, the filibuster used to be only for legislation that the minority not only disliked but which was viewed as extreme / beyond-the-pale. Now the filibuster is used routinely.

In fact, I think that even if this doesn't happen now, it's inevitable (unless the system changes) that the senate will de facto refuse to confirm a nominee of the opposing party, and vacancies will become more common.

El Guapo wrote:Political norms are steadily breaking down over time. The main reason why this hasn't happened before is that there was a widespread view / norm that the President has the right to appoint any reasonably qualified mainstream jurist of his choosing, and that the role of the Senate in its "advice and consent" on this was to confirm that they're qualified and not crazy and whatnot. And yes, the democrats have played a role in breaking down this norm. Robert Bork, who was pretty objectively qualified to be a SCOTUS justice, was the first nominee (at least that I'm aware of) to be rejected by the Senate on ideological grounds - for having (in the view of the Senate) too "extreme" views.

I have to agree with you there. Bork was a brilliant legal mind, and was rejected purely on ideological grounds. I think that's when the over politicizing of the Supreme Court nominees really began, at least in my lifetime.

Grifman wrote:

El Guapo wrote:Political norms are steadily breaking down over time. The main reason why this hasn't happened before is that there was a widespread view / norm that the President has the right to appoint any reasonably qualified mainstream jurist of his choosing, and that the role of the Senate in its "advice and consent" on this was to confirm that they're qualified and not crazy and whatnot. And yes, the democrats have played a role in breaking down this norm. Robert Bork, who was pretty objectively qualified to be a SCOTUS justice, was the first nominee (at least that I'm aware of) to be rejected by the Senate on ideological grounds - for having (in the view of the Senate) too "extreme" views.

I have to agree with you there. Bork was a brilliant legal mind, and was rejected purely on ideological grounds. I think that's when the over politicizing of the Supreme Court nominees really began, at least in my lifetime.

This is also what worries me more generally. Even assuming (as seems currently likely) that we dodge the Trump asteroid - we have a constitutional system that relies heavily on political norms and customs to function at a minimally effective level. Those are breaking down over time, and it's *really* hard (even in a non hyper-polarized environment) to change the constitutional system. So I worry about our ability to govern in the 21st century.

Blackhawk wrote:I'd love to see a bill that says that if no decision is reached in a certain period of time, the President's recommendation stands (with provisions to prevent 13 months of joke appointments to intentionally invoke it.)

There's a few different things happening here though. In the nomination thread, I'd mentioned that the State of NJ had a vacancy in our Supreme Court for years - a vacancy that was maintained over politics. Apparently that was model behavior for the nation. But getting back to what's happening if the President is making nominations and they're holding hearings and discussions and then voting those nominations down - super. But they won't even hold a confirmation hearing, which is total and complete bullshit because that is part of their job. What other job can you think of where you can just flat out refuse to do it for 8+ months and there's no penalty? THAT is the problem and why I'm more of a fan of removing salary, pensions and health benefits for these no-talent ass clowns. But they won't hold a hearing because then their true intentions will be front and center. When the political system has turned into complete theater, we have a problem.

Not to worry the "shadow government" has a plan.

Rip wrote:Not to worry the "shadow government" has a plan.

We'll take it from here.

Cruz suggests leaving Supreme Court seat vacant if Clinton is elected.

"There will be plenty of time for debate on that issue, there is long historical precedent for a Supreme Court with fewer justices, just recently Justice (Stephen) 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 said, in a quote later provided by his office.

Also people at the Federalist Society and Heritage Foundation have suggested shrinking the SCOTUS and/or not confirming nominees.

I'm sure they're just joshing and that the GOP *totally* consider Clinton nominees post-election if they keep the Senate.

El Guapo wrote:Cruz suggests leaving Supreme Court seat vacant if Clinton is elected.

"There will be plenty of time for debate on that issue, there is long historical precedent for a Supreme Court with fewer justices, just recently Justice (Stephen) 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 said, in a quote later provided by his office.

Also people at the Federalist Society and Heritage Foundation have suggested shrinking the SCOTUS and/or not confirming nominees.

I'm sure they're just joshing and that the GOP *totally* consider Clinton nominees post-election if they keep the Senate.

They give us this shit show of an election/candidate with their "our way or no way" approach to governing and instead of learning anything from it propose to double down? Fuck the republican party. Burn it to the ground and start a new party actually based on fiscal responsibility.

Remus West wrote:

El Guapo wrote:Cruz suggests leaving Supreme Court seat vacant if Clinton is elected.

"There will be plenty of time for debate on that issue, there is long historical precedent for a Supreme Court with fewer justices, just recently Justice (Stephen) 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 said, in a quote later provided by his office.

Also people at the Federalist Society and Heritage Foundation have suggested shrinking the SCOTUS and/or not confirming nominees.

I'm sure they're just joshing and that the GOP *totally* consider Clinton nominees post-election if they keep the Senate.

They give us this shit show of an election/candidate with their "our way or no way" approach to governing and instead of learning anything from it propose to double down? Fuck the republican party. Burn it to the ground and start a new party actually based on fiscal responsibility.

Pretty much, yeah.

Jason Chaffetz, the Republican chairman of the House Oversight Committee, boasts to Dave Weigel that he plans to begin multiple years’ worth of investigations into the incoming Clinton presidency. “Even before we get to Day One, we’ve got two years’ worth of material already lined up.” Chaffetz makes clear in his interview that two years truly is a low-ball figure.

That's fine. They can keep losing elections too.

YellowKing wrote:That's fine. They can keep losing elections too.

Just like their policy of total obstructionism of Obama really cost the GOP badly in 2010 and beyond, right?

That's the whole problem - this *doesn't* hurt them in elections, at least not too date. Yeah, *Trump* has cost them, and Trump is somewhat linked to GOP nihilism, but to win all they really need to do is figure out how to get Ted Cruz or someone mildly more subtle than Trump as their nominee in 2020, not to change their overall strategy.

El Guapo wrote:Just like their policy of total obstructionism of Obama really cost the GOP badly in 2010 and beyond, right?

Maybe it's just taking time for the chickens to come home to roost.

YellowKing wrote:

El Guapo wrote:Just like their policy of total obstructionism of Obama really cost the GOP badly in 2010 and beyond, right?

Maybe it's just taking time for the chickens to come home to roost.

Any day now, I'm sure.

Now, *if* we wind up with a total wipeout where the GOP loses the House (still unlikely) *and* the Senate, *maybe* things might start to change. In the short-term the GOP would lose any real actual ability to unilaterally obstruct, and because in the medium to long-term the 2016 race might be remembered as a cautionary tale about the danger of pure obstructionism and Trumpism. I'm still wary about even that, because the structural incentives of our political system won't clearly be any different (unless the democrats take the opportunity to rewrite electoral rules, as they should).

Anything short of that, and I doubt much will change.

I'm trying to be optimistic, but you're probably right in that if there's anyone Republicans hate more than Obama, it's Clinton. So you haven't seen obstructionism yet.

Hell, we'll probably see impeachment proceedings before all is said and done.

YellowKing wrote: Hell, we'll probably see impeachment proceedings before inauguration

FTFY

YellowKing wrote:I'm trying to be optimistic, but you're probably right in that if there's anyone Republicans hate more than Obama, it's Clinton. So you haven't seen obstructionism yet.

Hell, we'll probably see impeachment proceedings before all is said and done.

Pfff, get with the times. A GOP congressman called for pre-impeaching Hillary over a year ago.

The optimistic scenarios are: (1) a total wipeout this year (GOP loses the House and the Senate), giving us at least two years of actual governance and hopefully emboldening GOP moderates; or (2) Trump and Bannon turn the GOP into an ever more explicit white nationalist party, and the GOP either splinters or winds up getting replaced Whig-style.

However, if the GOP retains at least one branch of Congress this year, as seems probable, it's not going to be pretty.

Smoove_B wrote:

Blackhawk wrote:I'd love to see a bill that says that if no decision is reached in a certain period of time, the President's recommendation stands (with provisions to prevent 13 months of joke appointments to intentionally invoke it.)

There's a few different things happening here though. In the nomination thread, I'd mentioned that the State of NJ had a vacancy in our Supreme Court for years - a vacancy that was maintained over politics. Apparently that was model behavior for the nation. But getting back to what's happening if the President is making nominations and they're holding hearings and discussions and then voting those nominations down - super. But they won't even hold a confirmation hearing, which is total and complete bullshit because that is part of their job. What other job can you think of where you can just flat out refuse to do it for 8+ months and there's no penalty? THAT is the problem and why I'm more of a fan of removing salary, pensions and health benefits for these no-talent ass clowns. But they won't hold a hearing because then their true intentions will be front and center. When the political system has turned into complete theater, we have a problem.

If I could change the Senate rules regarding nominations, I'd set it up so that after a certain period of time, a group of Senators (say 10 or 20) could force a floor vote on a judicial nominee by submitting a joint request to the Majority leader. Say, 18 months for District Judges, 12 months for Appeals Justices, and 6 months for Supreme Court Justices.

I'd be open for anything at this point and that doesn't sound unreasonable to me. The precedent this has set is disgusting and I am honestly astounded it has been able to continue this long.

El Guapo wrote:

YellowKing wrote:That's fine. They can keep losing elections too.

Just like their policy of total obstructionism of Obama really cost the GOP badly in 2010 and beyond, right?

That's the whole problem - this *doesn't* hurt them in elections, at least not too date. Yeah, *Trump* has cost them, and Trump is somewhat linked to GOP nihilism, but to win all they really need to do is figure out how to get Ted Cruz or someone mildly more subtle than Trump as their nominee in 2020, not to change their overall strategy.

I personally vow never to vote for another Republican, in any office, until the Supreme Court is full again. I will be making sure both my local, state, and national offices know that.

Apparently one of the things you need to watch with SCOTUS is the hands.

The 25th anniversary of Justice Clarence Thomas’s confirmation to the Supreme Court has featured testimonials from his supporters, a symposium on his jurisprudence and tributes from conservative legal scholars about his influence on the court.

But Thursday brought an unwelcome echo of the sexual harassment allegations that almost derailed his 1991 nomination: An Alaska lawyer told the National Law Journal that Thomas groped her at a dinner party in 1999, when she was a young Truman Foundation scholar in Washington.

Through a court spokeswoman, Thomas told the publication: “This claim is preposterous and it never happened.”

How about some pre-election commentary on what to expect after November 8th?

My prediction is this: if Hillary Clinton wins next Tuesday, Garland will be confirmed before January,” Isakson told The Atlanta Journal Constitution Friday. “He’s probably a lot more conservative than anybody she would appoint. If Donald Trump wins, there probably won’t be a confirmation of Merrick Garland.”

Oh, ok...at least you're being transparent over what's happening. I mean, you're an a-hole for doing it, but I appreciate the honesty. But then I get to this:

But other Republicans are already advocating for a different strategy: Double down and don’t confirm any justices nominated by a Democratic president, even if that means the Supreme Court stays at eight members.

“If Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court,” Sen. Richard Burr (R-N.C.) said.

“I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up. I promise you,” Sen. John McCain (R-Ariz.) also said.

Awesome. I hope you're both ejected as the earliest opportunity.

But...this election was supposed to let The People(tm) decide who we wanted nominating Supreme Court Justices?!? Sen. McConnell promised!!!

RunningMn9 wrote:But...this election was supposed to let The People(tm) decide who we wanted nominating Supreme Court Justices?!? Sen. McConnell promised!!!

If I could be guaranteed they'd see it, I'd email them all this:

Honestly it might be time at that point for an old fashioned march on Washington. It is that or bleed a slow death.

Per 538 democrats had a 70% chance of taking the Senate just before the Comey letter. Now ~ 49%. #HeckuvaJobComey.

In related news, the Heritage Foundation has started pushing Republicans to take a "no democratic SCOTUS nominees" position.

We are so borked as a country.

El Guapo wrote:Per 538 democrats had a 70% chance of taking the Senate just before the Comey letter. Now ~ 49%. #HeckuvaJobComey.

In related news, the Heritage Foundation has started pushing Republicans to take a "no democratic SCOTUS nominees" position.

We are so borked as a country.

We'll see, but sounds like you were right. I was absolutely shocked to hear McCain take a "no Hillary nominations will make it through for 4 years" stance.

I'm sure there is lots of chortling and glee at the idea from the far right, but geezus H. That's a ludicrously insane position to take. I mean, really, fucking dysfunctional.

GreenGoo wrote:

El Guapo wrote:Per 538 democrats had a 70% chance of taking the Senate just before the Comey letter. Now ~ 49%. #HeckuvaJobComey.

In related news, the Heritage Foundation has started pushing Republicans to take a "no democratic SCOTUS nominees" position.

We are so borked as a country.

We'll see, but sounds like you were right. I was absolutely shocked to hear McCain take a "no Hillary nominations will make it through for 4 years" stance.

I'm sure there is lots of chortling and glee at the idea from the far right, but geezus H. That's a ludicrously insane position to take. I mean, really, fucking dysfunctional.

People keep assuming that the Republicans won't do shocking things because who would ever do something like that? But political norms started completely collapsing at the start of the Obama presidency. So norms won't prevent the GOP from using all available legal means to advance conservatism and impede liberalism.

A Clinton SCOTUS nominee of any plausible type will result in a SCOTUS that issues more liberal and fewer conservative rulings, so they will do everything that they can to prevent that.

I wish the supreme court would just come out and be like "Listen republicans, we want a full supreme court. If you don't stop your roadblocking, you might find all of us judges leaning more left as time goes on..."

Toe wrote:I wish the supreme court would just come out and be like "Listen republicans, we want a full supreme court. If you don't stop your roadblocking, you might find all of us judges leaning more left as time goes on..."

I predict that's exactly what will happen if they refuse to address Hillary appointees.

PLW wrote:

Toe wrote:I wish the supreme court would just come out and be like "Listen republicans, we want a full supreme court. If you don't stop your roadblocking, you might find all of us judges leaning more left as time goes on..."

I predict that's exactly what will happen if they refuse to address Hillary appointees.

Not likely. The 4 conservative justices haven't exactly shied away from political SCOTUS decisions.

Out of curiosity, is it possible to sue Congress in order to get the Supremes to weigh in on the Constitutional interpretation of "advise and consent"?

Can't the president appoint a temporary Supreme Court judge with a recess appointment?

RunningMn9 wrote:Out of curiosity, is it possible to sue Congress in order to get the Supremes to weigh in on the Constitutional interpretation of "advise and consent"?

There would be significant standing and political question legal obstacles for such a suit, such that it's probably not realistic. However, Roberts does seem to have a genuine interest in the Supreme Court as an institution, so there's a chance that he might be flexible about interpreting those issues in order if he thinks that this would be an opportunity to 'fix' Supreme Court appointments.

Ralph-Wiggum wrote:Can't the president appoint a temporary Supreme Court judge with a recess appointment?

Possibly. But first Congress has to be in 'recess' and IIRC a court ruling from a few years ago made it so that Congress can effectively perpetually keep itself out of recess if it wants to.

Ralph-Wiggum wrote:Can't the president appoint a temporary Supreme Court judge with a recess appointment?

It's Complicated?