Americans Divided Over Who Should Name Scalia’s Replacement, Obama Or Next POTUS
Two new polls show that Americans are basically split equally on the question of who should appoint the Justice that will replace Antonin Scalia on the Supreme Court.
The announcement that Associate Justice Antonin Scalia had died on Saturday night was barely an hour old before the political firestorm that was largely inevitable began to erupt. Starting with statements on Twitter from conservative writers and then moving on to comments from Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Chuck Grassley, Republicans seemed to begin to take the position that there should be no action on a replacement for Justice Scalia until after a new President takes office, which, of course, won’t happen for another eleven months. Each of the Republican candidates for President agreed with this position, and, rather quickly, conservatives took up the banner of “No hearings, No votes” when it comes to any replacement for Justice Scalia named by President Obama. The President Obama, meanwhile, took the position that he will go ahead with naming a nominee as the Constitution requires, and both Hillary Clinton and Bernie Sanders agreed with him and criticized Republicans for their perceived vow of non-action.
In the days since Scalia’s death, there have been some signs that Republicans may back away from the position of not taking any action on a replacement that the President may name, perhaps in recognition of the risks the GOP is taking with this kind of intransigence. First, Chuck Grassley left open the door to possible hearings on a nominee while still making it clear than it was unlikely that any nominee would make it through the Senate. Then, several Senators, including one who is considered among the most vulnerable for re-election suggested that the refusal to act at all on a nominee was not a good idea and that the GOP should at least give thought to giving whomever the President nominates a hearing even if the nomination is ultimately rejected as everyone expects it will be. What’s clear from this apparent reconsideration of the immediate response to Scalia’s death is that Republican Senators, or at least some of them, want to proceed carefully before deciding how to react to any future nominee. Given the fact that, in the end, what really matters is what the voters think about how the GOP handles this, it’s an understandable strategy and, now, we have our first indications of where the public stands and, if early polling is any indication, the American people are as divided on the issue as you ight expect.
First, a new NBC News/Wall Street Journal poll finds that Americans are almost equally divided on the question of who should pick the person that will replace Scalia on the Court, and that there is a clear partisan divide:
American voters are divided — especially along party lines — whether the U.S. Senate should vote this year on President Obama’s eventual nominee to succeed Antonin Scalia on the Supreme Court, according to results from a new national NBC News/Wall Street Journal poll.
Overall, 43 percent say the Senate should vote this year on a replacement, versus 42 percent who prefer to leave the position vacant and wait for a nomination by the new president; 15 percent have no opinion.
Among Democratic voters, 81 percent want the Senate to vote this year, while just 9 percent disagree. But those numbers are flipped among Republicans — 81 percent of them want to leave the position vacant, while 11 percent prefer to vote this year.
Independents are split — 43 percent this year, 42 percent next year.
The numbers are basically the same in a CBS News/New York Times poll:
With an unexpected vacancy on the Supreme Court as a result of Justice Antonin Scalia’s death, it’s unclear if he will be replaced before the November election.
Forty-seven percent would like to see the next justice appointed by President Obama before the election in November, while nearly as many, 46 percent, would like to see the new justice appointed by whoever is elected in November.
Views are highly partisan: 82 percent of Republicans would like to see the next president appoint Justice Scalia’s replacement, while 77 percent of Democrats want President Obama to make that appointment.
Among Independents, the CBS/NYT poll shows 46% would like to see the new Justice nominated by President Obama, while 43% believe the selection of a new nominee should wait until a new President is in office.
Obviously, this is still early polling and somewhat speculative given the fact that President Obama has yet to name a nominee and we have yet to see any of the impact that Justice Scalia’s death and a Court with only eight Justices could have on important cases that the Supreme Court is dealing with this year. Nonetheless, as Chris Cillizza suggests when he wrote about just the NBC/WSJ poll last night, these numbers make it likely that Senate Republicans will stick to the idea that it would be inappropriate to seat a Supreme Court nominee picked by a lame duck President:
[I]f you are, say, Senate Majority Leader Mitch McConnell (Ky.), and you are looking at this NBC data, you are left with two conclusions:
- We won’t be hurt among independents for not holding a vote, and
- Our base will be thrilled if we don’t hold a confirmation vote.
Even if McConnell was less politically savvy than he is, it’s pretty obvious what his next steps will be based on those conclusions: Insist that a vote isn’t going to happen and that the prerogative to pick the deciding vote on the court, which is currently split 4-4 between liberals and conservatives, should fall to the next president.
As I’ve written, I think McConnell made a mistake by so publicly telegraphing his plan to kill any nomination. But, these numbers suggest that McConnell’s underlying sentiment is one which will do him (and the party) some good with the GOP base and do him (and the party) basically no harm with the broader electorate.
The fact that the base is so strongly united behind the idea of not accepting any Obama nominee for the empty Supreme Court seat is, perhaps, even more important than the position of Independents in the political calculus that Republicans will use in approaching this issue. As we saw in 2010, 2012, and 2014, one of the biggest problems that Republicans faced in gaining control of the Senate was the fact that well-organized groups representing the hard-right base and the Tea Party were often able win nomination fights and force Republicans to put forward candidates that had no real chance of being competitive in a General Election. The most prominent examples of this, of course, were Sharron Angle and Christine O’Donnell. By 2014, the GOP establishment had figured out how to beat the Tea Party at its own primary game, though, and part of that involved being careful not to antagonize the masses prior to the primaries. In this case, that would mean avoiding giving any indication of deviating from the path of not allowing Obama to make another Supreme Court appointment while in office. Even after the primaries for any Senate seats are over, though, it’s unlikely that we’ll see the GOP change its position here unless polling starts to show that Independent voters are turning against the idea in sufficiently large numbers that it could impact the outcome of General Election races. Right now, that isn’t the case.
Perhaps the Republicans should get it over with and amend the constitution so that every Democrat who is elected president is immediately impeached, stripped of his authority and deported to Africa (even if the president doesn’t come from Africa), since that appears to be what they want.
In any case, the Republicans have actually done well with this in terms of gamesmanship — they have turned the Supreme Court into an election issue for their base. There really aren’t any downsides for them to do this, as they will now be able to unite their party around the need to save King Scalia from the Democrat’s infamy. I doubt that the Democrats and swing voters will show the same degree of concern.
Least shocking news of the day: “American voters are divided — especially along party lines — whether the U.S. Senate should vote this year on President Obama’s eventual nominee to succeed Antonin Scalia on the Supreme Court, according to results from a new national NBC News/Wall Street Journal poll.”
Alternate headline – “Americans are ignorant idiots and don’t understand the Constitution, thanks to a concerted effort by the Republican party and its media wing”
Tony W –
Nothing in the Constitution requires the Senate to act on a Presidential nomination or dictates the form in which it gives its ‘advice.’ It can approve the nominee in a floor vote, reject the nominee in a floor vote, or choose not to bring the nominee to the floor for a vote at all. I refer you to this piece at The Volokh Conspiracy
That pretty much says it all. It’s not that American are divided but that partisans are partisans.
What would be interesting is the reverse case, were a Republican President in office. Then you could see which party tends toward general principles vs. which tends toward opportunistic spin.
@Doug Mataconis: Granted, I’m not sure much in the Constitution requires Congress to do anything substantive related to good governance. However, that’s really not the basis on which the government was formed nor îs it what we expect our government to do. That the GOP would rather stand on legalism at the expense of principle brilliantly undercuts their brand. And yours too, Doug.
@Argon:
It’s all politics my friend.
If you don’t think you’d be seeing the same thing from Democrats if it were Ruth Bader Ginsburg who had died in the final year of a Republican President’s time in office then you are either naive or in denial.
All I did was point out the fact of what what the Constitution does and does not require in response to Tony’s claim that the GOP was acting in an unconstitutional manner. For better or worse, they are not.
@Argon:
They’re not even in line with the law. The Constitution doesn’t make provisions for the Senate to go on strike.
The Constitution says that advice and consent SHALL be provided. Some kind of process is clearly mandated. And it’s obvious why this is the case — you can’t have the judiciary that is required in Article 3 without the president and Senate fulfilling their duties as required in Article 2.
But the details aren’t provided, and the Republicans would be free to play procedural games that would allow them to stall, such as tabling the nomination hearings so that they don’t start in the first place. That would be annoying, but constitutional.
The thing is that the GOP doesn’t care about the constitutional aspects, it just wants a showdown. The hard line is being taken in order to define it as a campaign issue. Being more subtle or passive aggressive about it, such as saying “Thanks for the nominee, Mr. President — er, we’ll be sure to get back to you (cough, cough)…” wouldn’t help them to rouse their base.
A large portion of the Republican base has never accepted Obama as POTUS from day one. A large part of the reason for this is because, as Rick Santorum so eloquently put it, he’s blah. That hasn’t changed in seven years.
@Doug Mataconis: The trouble with the “both sides do it” argument is that it is possible for both sides to be wrong. Perhaps there are more important considerations than partisan advantage. There is plenty of time till the first Monday in October for people of good will to find a person who is qualified to do the job for the people of the US. In my opinion good governance is more important than either party.
@Pch101:
Uh, I’m sorry, but it doesn’t:
The verb ‘shall’ occurs twice here, in both cases governing the actions of the president. “He shall nominate,” OK, no Senatorial action required. “by and with the Advice and Consent of the Senate, [he shall appoint]. I don’t see how the ‘shall’ gathers the actions of the Senate. He can nominate, but there is no provision that the Senate must [shall] provide advice and consent. Besides on your reading, the Senate must [shall] provide consent. That can’t be the case.
As Dave said, this is pure politics at play.
The clear inference from the polling is that, basically 42% – or nearly all Republicans – do not know what the Constitution prescribes.
@sam:
“by and with the Advice and Consent of the Senate, shall appoint…”
The “shall” applies to both of them.
And again, you can’t fulfill the Article 3 requirement of having a judiciary without Article 2.
It really makes no sense to argue that the president is the only one who is required to act. If you want to argue that the Senate MAY provide advice and consent, then you are suggesting that it is optional, but nobody interprets advice and consent as being just an option.
I think at some point Doug is going to have to make up his mind as to whether polls matter or they don’t….
@Doug Mataconis:
So if, say, the remaining eight members of the court were to die in bizarre accident at Scalia’s funeral, nothing in the Constitution explicitly requires the Senate to confirm any other nominees the President may put forward.They could, if they wanted, simply vote no on all nominees, from now until the end of time, and we’d simply have no functioning Supreme Court ever again….
Yeah, that was probably the Founders’ intent, wasn’t it….?
@Doug Mataconis:
If you don’t think you’d be seeing the same thing from Democrats if it were Thurgood Marshall who had died in the final years of a Republican President’s time in office then you are either naive or in denial…..oh, wait.
@Argon:
Happened already. The Democratic Senate confirmed Reagan’s appointee Anthony Kennedy in 1988, Reagan’s last year in office, and another Democratic Senate confirmed Bush The Competent’s nominee Clarence Thomas in late 1991 (not Bush’s last year, technically, but about a year before the election.
@Doug Mataconis:
What a lazy, silly argument. If politics don’t matter, my friend, then why are you writing a political blog? Why should anyone bother to read you? Really stupid.
@Rafer Janders:
I can just imagine what the reaction would be if the president said, “I’m going on strike as commander in chief. It’s a boring part of the job and I just don’t wanna do it anymore.”
There would be a constitutional difference between being a disengaged, apathetic, passive aggressive, hapless, third rate commander in chief and a president who openly refuses to do a job specified in the constitution. The former is a judgment call and subjective, the latter is a brazen act of abdication and easy to identify.
@Pch101:
“The “shall” applies to both of them.”
We have a fundamental disagreement here.
@Rafer Janders:
Evidence suggests he already has: polls matter when their results comport with Doug’s ideological predilections, and when they don’t, they can safely be ignored. Pretty simple.
@Doug Mataconis:
Your colors are showing. If you didn’t think it was for better you would be taking more of a stand here. Just admit to yourself and everyone else you that you don’t want to see the balance of the court tip the other way. The “both sides do it” and legalism crap is you just dancing around your true feelings.
@Doug Mataconis:
Ahem …
Makes me wonder at what point during President Obama’s second term could Justice Scalia have died and Republicans NOT pulled the “oh, but he’s just a lame duck, we gotta wait until the next POTUS” scenario?
Feh.
I hope that Obama waits a few months, and then brings a case into court against whoever ends up blocking his candidate, using an equity/laches argument….I love laches arguments. (Basically, it’s a “use it or lose it” argument.
@Doug Mataconis:
I think the Democrats would be less obvious and go through the motions, juduciary commitee, full senate votes etc. Same end result though – no Scalia clone would get approved.
(The pubs would want to fire up the base, so only Alito types would get nominated. By contrast, I think Obama will play it straight by putting forth someone more like Kagan).
@Doug Mataconis:
No, it’s not all about politics… unless you take the view that all human interactions reduce to politics. Strange to see a Republican sympathizer advocating relativism.
@Argon:
Not strange at all, these days. It’s been well over a decade since the Republicans converted, en masse, to the belief that there is no objective reality, that reality is only what we say it is and that there is no such thing as an objective standard of truth or goodness. Basically, if it feels good to them, they do it.
@Doug Mataconis: I never argued Republicans were not being constitutional. I argued that American Citizens don’t understand the Constitution, nor the Senate Rules, nor the history behind them – and Fox News/Trump/McConnell has them thinking that it is a legitimate argument that Supreme Court nominees can/should be infinitely delayed. As others point out the Senate “shall” advise and consent.
If you accept 12 months of delay, why not 96 months? Where’s the line where it becomes ridiculous? There is an equally silly argument that the president, constitutionally, could have the entire senate executed, pardon himself for doing so, then keep doing so until he gets a Senate that is more amenable to his liking. If we’re going to argue that which is legal can ignore what is moral and ethical and in alignment with the interests of the people then I’m on the next plane out of the U.S.
Democrats allowed Clarence Thomas, Republicans should do the same.
The Founders specifically designed the Court to be as far away from voters as possible. If they’d wanted the Court to be impacted by the electorate, they would have placed the advice and consent with the House, which was the only directly elected body at the time (President elected by electors, Senators were elected by state legislatures). The number of “strict constitutionalists” demanding the will of the people be involved is sort of ironic.
@Doug Mataconis:
Actually, as polarized as the country is now, with the Pubs desperate to preserve white privilege and Christian privilege through gerrymandering etc., I think this would happen any time during the final four years of a Democratic administration.
Was there a follow-up question of what happens if the next President happens to be of the other political party then the respondent? I wonder how far those numbers would swing to “vote now” if they were presented with the fact that the next President could be even more liberal than Obama?
The underlying assumption for these people is they are going to win and they just have to hold the line. Has anyone queried their feelings as to being between a rock (Obama) and a hard place (Sanders/Clinton?) Someone needs to go get that data and drop it in front of McConnell – if they don’t win and Hillary takes the Oval Office, the fur is going to fly………
@sam:
I’ve considered for a couple days now that this disagreement boils down to whether the President’s nomination and the Senate’s “advice and consent” are separate processes wherein the President’s nomination does not impose any requirement on the Senate, or two parts of a single process wherein the President’s nomination does impose a requirement on the Senate.
This is such a disingenuous argument…nothing in the Constitution precludes the president from going on vacation for most of the year but I’m sure that Doug wouldn’t be as blasé about that as he seems to be about this…
@Tony W:
As I’m sure Doug would agree, there’s technically nothing in the Constitution that forbids it.
Obama vincit! Obama regnat! Obama imperator!
If the GOP won’t even consider the nomination from Obama, how is that materially different a blanket refusal to allow the opposition to confirm any nominee ever? I think it needs to be clear what the people who hide behind the pathetic “but the constitution allows it” dodge are supporting.
@Rafer Janders:
I’ve never said polls, or more broadly the opinion of the general public and what politicians think they can get away with, don’t matter. From Sunday forward, I have said that whether or not the GOP’s position is a good idea will ultimately be something that voters will decide.
Based on these preliminary polls, it seems as though the political price Republicans would pay for declining to seat an Obama nominee — whether that means not acting at all or ultimately blocking the nominee via a cloture vote — would be minimal to non-existent. As long as that is the case, they will, as Chris Cillizza put it, continue along this road regardless of whether you, or I, or anyone else thinks it is the “right” thing to do from some abstract moral point of view.
Most people do not care, even, so not much of an issue. Quote from fivethirtyeight.
http://fivethirtyeight.com/features/the-supreme-court-fight-probably-wont-define-the-election-for-voters/
@Doug Mataconis: Instead of pointing out how the political price will be non-existent, maybe you could take a stronger stand and write about how it’s wrong, whatever the law might technically allow them to do? You are a sort-of conservative and post to a somewhat popular blog, after all. You can have an opinion.
@reid:
So basically you’re saying you want me to agree with you 100% and write something that you agree with 100%.
The only reason we’re even having this asinine conversation (shades of the definition of “is”) is because Cruz couldn’t wait 5 minutes for Scalia’s body to cool before making this all about him. After all, he thinks he’s going to be President so of course he’s going to argue for the next guy to make the call! He’s on the Judiciary Committee (something I think he should recuse himself from for the conflict of interest at this point) so he’s trying to toss his weight around and inciting others to seize the opportunity with him.
Normally, this would have gone the regular way of nominate, NFW, nominate, GTFO, nominate, OK they’re acceptable. Cruz started this sickeningly close to the announcement and McConnell jumped on for the ride. Cruz didn’t see an opportunity for the party or the conservatism but for himself. He really thinks this is his appointment to make and Obama’s getting in the way. While the other Repubs are worried the courts will tilt left, Curz’s is already measuring for drapes and pissy the previous owner hasn’t left yet.
@Doug Mataconis:
LOL. no. Just stop trying to pretend you’re not smiling about this.
Or that you wouldn’t be losing your collective poo if Dems were doing this to a Republican president.
@HarvardLaw92:
I’ve expressed my opinion about this and if I’m smiling it’s because this promises to be a juicy political story for months to come, if not the better part of a year or more.
Some people apparently want to wave the outrage flag over this one. Frankly, I’m quite tired of “Outrage Of The Day” politics.
@Doug Mataconis: Of course not, and I didn’t say that. Why the snotty response? I’m just guessing that on this point, we actually do agree. Do you think what they’re doing is right? If so, go ahead and write about it. If not, then say that. So many of your posts boil down to, “It’s legally/technically okay (or not). Democrats would do it, too. Polls may reflect so-and-so as a result. It’s all just politics.” I actually do appreciate this forum for discussion, but I think it would behoove you to put a little passion in your posts and take some stands. I can find a million blogs and pundits who can talk endlessly about polls and politics as if it’s just a sport. But it’s your blog….
@reid:
I’ll reserve the passion for times when I think it actually matters. As I said in the comment above, “Outrage Of The Day” politics is both uninteresting and exhausting.
@Doug Mataconis:
So, in other words, principles are only meaningful when 1) your party stands to lose something or 2) there isn’t an angle you can milk for professional benefit.
Gotcha, thanks.
@Doug Mataconis: I’m not sure how you think this doesn’t matter. Supreme Court Justice may be the most powerful job in the country, in a way. I can certainly understand how politics can feel like an unending swim through a vat of feces, but this is important. The attitude of Republicans that using such a tactic is okay is also important.
@Doug Mataconis:
Yes, like Hillary Clinton’s emails.
Which is right about the split of defacto democrats, defacto republicans, and actual independents. It is all partisan politics and apparently precious few people can look beyond naked partisan calculations to advocate what is right.
@Doug Mataconis:
No, I think he (and others) are/have been asking whether you agree with this tactic, think this tactic is an abdication of responsibility, or you really don’t care one way or another and think all Senate actions are ‘just politics’ and the ballot box determines if they are right or wrong.
@Grewgills: Precisely. I guess if you think it’s all just a game, then it’s easy to not care. Maybe another way to put it is that there’s no distinction between politics and governing anymore, and that’s a big problem.
And I think if you guys did not keep insisting that it is also completely acceptable constitutionally we would not have much of an discussion.
@Doug Mataconis:
There may or may not be a political price to pay with voters but I think it’s important to acknowledge that these situations are unprecedented in the modern era and current partisan environment. As it currently stands, 82% of Republicans would be delighted if the United States defaulted on its debt. 82% of Democrats would be delighted if we closed every US military base and airfield in the world. Neither would be good governance.
Also, saying there’s no moral dimension to politics disturbs me greatly. I get the point you’re trying to make, but having made that point, I think it’s appropriate you answer the question what is the limit. If HRC is elected, but the Republicans control the Senate, will the rules and procedure game just play out for the next 4 years? 8 years? Let’s just not fill any seats or hold any votes and just read the phonebook all day. Mission accomplished, Constitutionally acceptable, and Doug Mataconis is presumably pleased that there is endless gridlock for the remainder of his lifespan.
Also, SCOTUS itself may dislike being a political football for months and years to come. There may not be a political price with voters, but there may be one elsewhere. And there’s also the issue of legitimization of acceptable tactics. I presume that since Republicans are pulling this trick now, you will have no disagreement when it is pulled on a Republican President in the future.
@HarvardLaw92:
No, I just don’t believe in getting outraged over every little thing that happens in politics. It’s not good for the blood pressure for one thing. 🙂
@Grewgills:
In the end, it is all about the politics. If the voters are really upset about this, they’ll let us know in November.
@reid:
Were you this morally outraged when Democrats were using the filibuster and other means to block Bush appointments to the Circuit Courts of Appeal?
@HarvardLaw92:
No, it’s just that I don’t think that a situation where things would be exactly the same if the parties were reversed is worth getting into a flaming outrage over.
@Lit3Bolt:
Well, that’s, um, not actually true at all.
@Doug Mataconis:
So you’re going with option 3, the only way to judge the rightness or wrongness of senate actions is who wins the next election. Got it. I’ll remember this the next time you voice disapproval over the action of any politician.
If Clinton wins in November that will, of course, mean that everything she did with her private email server was judicious and the exact right thing to do.
@Grewgills:
You want to turn this into a morality issue.
My response is that since there is nothing in the Constitution that requires the Senate to give judicial nominees and up or down vote, that there is no “right” or “wrong” here independent of the pre-existing partisan prejudice of the person making the comment.
@Doug Mataconis:
The same can be said of the government shut down led by Cruz. By your apparent calculations here ‘right’, because the republicans did better in the next election.
The same can also be said of pushing the government to default on its debt, again technically and constitutionally allowed. By those same calculations ‘right’ because the republicans did well in the next election.
Obama’s intervention in Libya right because he won reelection.
GWB’s invasion of Iraq right, because he won reelection and republicans increased seats in congress.
Something can be right or wrong, good or bad governance, independent of it being technically legally and constitutionally allowable. The republicans certainly can legally and constitutionally prevent Obama from putting another justice on the SC and can even legally and constitutionally extend that to preventing the next president from putting a justice on the SC. They can also legally and constitutionally prevent the appointment of any and all cabinet officers for the next president. Do you really thing that doing so would be good governance or the ‘right’ thing to do? Is there some line where it becomes bad governance even if it isn’t unconstitutional or electorally punished?
@Doug Mataconis:
No, I’m just enjoying the hypocrisy.
It’s pretty obvious that this is a partisan position for you, so just own that. Stop trying to dress it up in clothes that don’t fit. Own it for what it is.
I don’t fault Mr. Mataconis for avoiding a ride on the anger train; we could use less angst and more analysis on the political interwebs.
Whether the GOP’s acts are unconstitutional and whether they are politically wise are two separate issues, and the decency of the whole thing is yet entirely different matter.
@Doug Mataconis:
Like I’ve said to you many times now, the situation in reverse has resulted in Democrats confirming a partisan nominee twice now. You can’t use a hypothetical to justify the actual.
Know who else engages in that sort of behavior? People intent on perpetrating a fraud. If they can rationalize getting what they want as being acceptable, then they’re halfway there.
The fact remains that Democrats have never done this to a Republican president. You’re assuming that they would because it helps you justify something that you want for partisan reasons. If that helps you sleep at night, then whoopee, but own it for what it is – you being a partisan.
@Grewgills:
In many respects, yes, the question of whether or not something is a good or bad idea does come down to whether or not the voters ultimately approve of it. Not every political issue is a moral one no matter how much you think that it should be. The government shutdown was a dumb idea because there was no way the GOP could have won that battle, something even prominent Republicans like Boehner and Tom Coburn recognized. The fact that the GOP didn’t really suffer electorally because of it was due largely to the fact that it happened a year before the 2014 elections and there were many more intervening events that diverted the attention and concern of the voting public.
Other things, such as the Libya intervention, are covered by broader moral questions such as the just and proper use of force, something which has a long history in the Western world. Additionally, to the extent Libya seems to be turning into a haven for ISIS and other terrorists it seems that history will be the ultimate judge as to whether or not that intervention was a good idea.
Finally, not all of these things are equal. Certainly, foreign policy questions that involve actually killing people and changing the course of world history carry with them greater moral importance than parliamentary maneuvers in the United States Senate. That’s what I mean when I say that not every issue deserves the same “Outrage Of The Day” treatment.
@HarvardLaw92:
Both examples you cited are from 20-30 years in the past. If you don’t believe that modern Democrats would act differently than their counterparts a generation ago did, then you have become blind to the extent to which polarization has impacted the political process as a whole. Furthermore, your analysis ignores the dozen or more Bush judicial appointments blocked by Democrats via the filibuster and other means as well as the comments by Chuck Schumer in 2007 regarding how Democrats should deal with a potential Bush SCOTUS appointment in the final year of his term.
@HarvardLaw92:
If it were a partisan issue for me, I would have written a post condemning the four Senators (so far) who have said they’d be willing to go forward with Committee hearings for a potential Obama nominee. I have written no such post and have no intention to. Indeed, my expectation is that, ultimately, that is exactly what will happen. There will be hearings, albeit likely at a slower pace than normal, and ultimately the committee will send the nomination to the floor, likely with a negative vote along partisan lines as we saw in the Bork case. Then, the nomination will likely die when it fails to get the 60 votes necessary to invoke cloture.
@Rafer Janders:
I know that…I was trying to think of some “Both Sides Do It” red meat for our host. I was having trouble thinking of an overwhelming Democratic position that might not lead to a rosy governing picture….my own partisan blind spot at play.
@Doug Mataconis:
But again, there is a difference between using parliamentary procedure to derail things and dereliction of duty that is allegedly justified by the bogus claim that the president has no authority.
What if HRC wins 2016? – what will the GOP do with her appointee to replace Scalia, delay it until 2020? Lol – at some point the political gamesmanship needs to stop and people need to do their job, but yes Doug we understand it is a game, but eventually you have to make a bet or fold, not keep asking for a re-deal
@reid: I think he approves. He said so and reiterated the sentiment three or four times before he admitted that it might involve a risk.
And pulled my comment for calling him on it.
Dubya was re-elected therefore the invasion and occupation of Iraq was obviously a stroke of brilliance!
Welcome to DougWorld! Where a self avowed Libertarian (don’t dare call him a Republican) thinks Social Security and Medicare Part D are the best thing since sliced bread!
@Doug Mataconis:
Um, Supreme Court decisions change the course of world history too. Or am I missing something?
Look, you can’t have it both ways. We’re complaining about the erosion of standards and compromise in the Senate, and you’re normalizing extremist behavior by your party and pretending it’s perfectly rational and normal. And then you go and blame everything on “the political environment” as if Republicans have no choice to not compromise with Obama, as well as minimizing their own obstructionist role in creating that environment.
So then, by your logic, were the Democrats of 1988 fools for allowing Kennedy on the bench after they proved they could get their way by denying Bork? Were they political naifs to not procedurally stonewall Clarence Thomas, as long as they could have gotten away with it by the voters? After all, there’s no moral question in filling Supreme Court vacancies.
But there is an ideological one…one that you’re apparently embarrassed to admit.
Seriously Doug. I’m pretty sure you aren’t contractually obligated to James to actually comment or reply to comments on your posts here.
Why push the silly when you don’t have to?
@Lit3Bolt:
“Your party”
Objection your honor, assumes facts not in evidence.
@Davebo:
I’m hoping, perhaps, naively, that people will actually understand what I’m saying rather than reading it through a partisan pair of glasses I suppose.
But, yes, I do need to go do something more productive at this time.
@Doug Mataconis:
If you feel you are constantly being misunderstood perhaps some introspection is in order.
@Just ‘nutha ig’rant cracker:
I have not deleted any comments on any of the threads dealing with this subject.
@Davebo:
Oh it’s clear what the problem is.
Some people only want to be exposed to opinions that are in line with their pre-existing political prejudices.
@Doug Mataconis:
If that were the case none of us would be here. Asking you to state your actual opinion about whether or not these actions are good governance or bad governance is not the same as demanding lockstep agreement. If you came out and admitted that you liked the tactic as you think it improves the odds of ending up with a court more in line with your views, even the inevitable push back you got wouldn’t be demanding lock step agreement. It would remain honest disagreement with your position or lack thereof.
@Doug Mataconis:
I’ve read your post and your comments. In the post you posited that if there was no backlash from voters via polling results GOP Republicans would continue to obstruct. No real shocker there. Your comments were more of the “it’s perfectly legal” tripe you’ve been pushing for days.
I guess one could describe those as opinions if one stretched the definition.
Some have tried to elicit from you whether or not you thought the GOP position was right.
They’re silly. You are a self described Libertarian (AKA, Republican ashamed to admit it) after all. Right and wrong don’t come into play.
@Doug Mataconis: From this comment, I wonder what your ideals would be regarding the general functioning of the house and senate? It must be more than “the voters determine if it functions well or not”. That would mean the ideal reality is at least partly based on the outrage of the day (what voters choose to care about – some of it is the outrage of the day).
I guess I’m just getting tired of all the “would our/their side do it too??” arguments… or all the “is it legal” arguments. I’m barely seeing any posts anywhere based on what would be the ideal situation. I guess because to Democrats, it’s being able to pic a nominee and to Republicans, it’s being able not to pick one.
@Doug Mataconis: Why can’t there be a right and wrong here besides based on partisan prejudice?
1. I’d think that having a well-functioning court ( = unable to be tied 4-4, enough manpower and diversity of opinion or something like that) is a good ideal to have, regardless of your partisan side.
2. As an outsider, from the EU (technocratic as hell) with perhaps a lack of understanding of US politics, it just seems weird to me to base nomination decisions on ideology to this extent. If basically all that matters is if a Supreme will vote according to your particular ideology, what’s the point of a supreme court above having say, some sort of 9-person upper congress who veto or uphold cases? It’s basically another political arena. It seems ludicrous to me to base voting someone up or down (or nominating someone) on litmus tests, or something like that. For me, what follows from that is that technical prowess and conscientiousness should count more than ideology in a nominating decision (for president as well as congress). It’s insane to me that the process has gotten this partisan. I doubt this is what the founders intended.
@Davebo:
So again, you want me to be as outraged as you are about this. Perhaps it’s just that I’ve become cynical from watching nearly two decades of dysfunctional government out of Washington produce things much worse than this, but I’m just not. The political fallout of all of it, and how it impacts the the elections is really of more interest at this point than getting all in a tizzy about this right now. Especially since there are other issues, such as foreign policy, that are literally a matter of life or death to worry about.
@Doug Mataconis:
Now who’s assuming facts not in evidence? I find the origami among the political class over this almost as amusing as your obfuscation.
You are the one projecting “outrage” on others and it’s a clever attempt to dodge the simple question you’ve been asked over and over. I haven’t seen a single comment that even began to approach any reasonable definition of outrage on this thread.
In other words, not one is getting “in a tizzy” regardless of how many times you use that excuse to dodge a simple question.
@Frank Q:
The US borrowed most of its system of jurisprudence from Britain, rather than Roman law. Accordingly, there is less dependency on statute and more on precedent, which not only leaves more room for interpretation but also creates an opportunity to create precedents for those who follow. So much of the wrangling over the court comes from the ongoing future impact of decisions, as the most important decisions are not usually made on a case-by-case basis.
The US system is also based upon checks-and-balances rather than simple majorities, which encourages motivated minority interest groups to obstruct the things that they oppose — they don’t necessarily have to sway very many people in order to prevent change.
The checks-and-balances system was supposed to discourage the rise of political factions, but it inadvertently had the opposite effect.
@Doug Mataconis:
Let’s try this again:
Democrats have NEVER denied a sitting Republican president the opportunity to nominate a justice for the Supreme Court, even when that nominee drastically shifted the balance of the court (Thomas …).
Have they made noise? Sure. Have they engaged in rhetoric? Sure.
Have they ever actually prevented a sitting Republican president from seating a justice in an open seat? No.
You are still scope locked on this pathetic “well, they would do it too” nonsense, when the reality is that they have never done it. The only evidence you have that they ever would do it is your assumption that they would because you want to believe that – it makes rationalizing what you want easier.
You’re engaging in projection on a biblical scale.
Let me clear it up a bit. The court is beyond politics. You don’t screw with it. Period. I can grudgingly accept Congress being perpetually dysfunctional because of partisan rancor, but that shit stops when you cross First Street SE. Don’t f’k with the court.
I find it weird that everyone is couching this argument as changing the political make up of the court for “a generation.” If Obama gets this nominee and the court switches to a 5-4 Dem. RBG, Breyer and Kennedy are the three most likely to retire. If a Republican wins and something happens to or those three retire without Obama nominating then the court could swing 7-2 Repub despite them possibly winning only two elections in 24 years. The argument that this is a generational thing is outlandish. Because either a Dem wins makes this nomination and the court swings 6-3. Or a Republican wins and it swings 6-3 if Obama is allowed to nominate or 7-2 without. This isn’t that important, because likely it will not impact the court to the extent it is being portrayed.
@HarvardLaw92: Democrats have prevented a Republican president from seating a specific justice in an open seat — see Bork. But, Bork was a deeply flawed nominee.
Democrats were joined by Republicans in turning down that nomination.
But, you are entirely correct that the Democrats have never prevented a Republican president from seating some justice in an open seat.
@Dave D:
The point is that the replacements are highly likely to be in their mid to late 40s either way.
Replacing Scalia, Ginsburg, Breyer and Kennedy with 40 year old moderate to liberal justices who have lifetime appointments would change the tenor of the court for a generation.
If Dems win the Senate, decide that the antics have given them sufficient political cover to play the nuclear option, do so and install 3 to 4 very liberal justices (again in their mid to late 40s), it would be a tidal shift in the court and the rulings that it would produce going forward which would easily last 20 to 30 years – possibly longer. Imagine what the rulings from a court populated with Kagan, Sotomayor, and Ginsburg duplicates 1, 2 and 3, possibly 4, would look like.
This is why so much is at stake in this election. Lifetime appointments make changing the ideological makeup of the court a window that doesn’t come along that often.
@HarvardLaw92: I understand that, it is why I may cast my first vote for someone in a major party instead of Dr. Stein again. But regardless of whether Obama seats a nominee, the next president will likely change the make up of the court. This one vote won’t last the generation, there are three more likely to quickly follow. This seems like it should be the easy vote because it means the least. The next two to go are left votes that if are replaced by a Republican president would shift the balance right back to 5-4. That takes 4-8 years not an entire generation. This fight is silly and seemingly a bad place to take a stand. If Republicans think they can win and are really the majority, giving up a moderate seat should be acceptable. But they want it all and for years to come and need something to coalition build and rile up the base, and it may blow up in their faces or screw progress for years to come.
@Dave D: Main point is this one seat isn’t a generational change, but the next pres will be able to make that change. Ergo this seat is just fodder, but ultimately not that important.
Fox News poll covering the same question [pg.20 question 10]:
http://www.foxnews.com/politics/interactive/2016/02/18/fox-news-poll-national-presidential-race-february-18-2016/
62% support a there being nomination for the vacancy now vs 34% wanting it delayed until after the election.
Turning some of these 5-4 decisions into 4-5 decisions would make a considerable difference.
In any case, this Republican drama over the Court has more to do with the election than with the court, per se. At this rate, the GOP will not gain the White House and may lose the Senate, so it would help the party if it could use this to increase turnout. Most people don’t care about the court, but some of those Christian sharia values voters will.
@Doug Mataconis: “If you don’t think you’d be seeing the same thing from Democrats if it were Ruth Bader Ginsburg who had died in the final year of a Republican President’s time in office then you are either naive or in denial.”
Reality – https://en.wikipedia.org/wiki/Anthony_Kennedy
“who was nominated by President Ronald Reagan on November 11, 1987, and took the oath of office on February 18, 1988.”
The official GOP statement mentioned ‘in the last year’ of Obama’s administration.
@Jeremy R: “62% support a there being nomination for the vacancy now vs 34% wanting it delayed until after the election.”
And that’s Fox News.
Doug, how does it feel to be more detached from reality than Fox News and a Fox News poll?
@Barry:
An example from thirty years ago the fails to recognize the extent to which American politics has changed in the interim.
From what I see in Brazil, the “advice and consent from the Senate” is extremely important. Presidents will simply nominated people with poor credentials, but that are politically convenient, if the Senate does not care about the quality of the judges that are nominated.
But that´s completely different from saying that a president should not nominate a Justice in his last year in office. That´s completely ludicrous.
@Dave D:
I still haven’t decided if this is:
1) The predictable theater aimed at pandering to their low information base, after which their real intent is to attempt to leverage the situation to obtain a moderate justice, or;
2) A real attempt to run out the clock
They run some very heavy risks either way. 1 will enrage their low information base, and 2 will allow Democrats the opportunity to wreck Republican Senate campaigns for the entire campaign cycle through to November as well as give them a common enemy around which their somewhat fractured electorate can coalesce (as well as a common enemy to drive GOTV efforts). I think I have come to the conclusion that they really have gone nose deaf to the point where they think there is a silver lining for them in this strategy.
Meanwhile we benefit from what will almost certainly be more 4-4 per curiams than we’d otherwise have in this term (I’m not entirely thrilled about that, but I have to acknowledge it as a net benefit for Democrats nonetheless).
Mostly I’m just viscerally offended that anybody is playing games with a court that I love, hell a court that I revere. It pisses me off.
@Doug Mataconis:
Then if you have no dog in the ideological hunt, answering whether you think the Republican tactic and strategy is appropriate governance shouldn’t be an undue burden.
This is like the debt ceiling again. The GOP is incapable of acting in opposition without threatening to cause great damage to the country.
Scoring political points or expressing disapproval through votes isn’t necessarily a problem, but it needs to be within reason. Bork isn’t on the court but Kennedy was confirmed in an election year. Alito and Roberts were both confirmed. The Democrats protested quite a bit, but Priscilla Owen, Janice Rogers Brown and William Pryor were all confirmed. With the Democrats holding a majority in the Senate in 2007/2008, they confirmed 10 judges to the Federal Appeals Courts and over 50 judges to the District Courts in the final two years of Bush’s term.
In case you’re wondering, the current GOP Senate is at 14 & 2 for the current term, and has indicated they are probably done.
Both. Sides. Don’t. Do. It.
Yet…but if a Supreme Court Justice isn’t confirmed before Obama leaves office…
Since we love the founders so, perhaps we should consider what they actually said. Federalist 76:
To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.
Federalist 77 continues this argument that the president should have sole nominating power with a Senate check and balance:
… The blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the Senate; aggravated by the consideration of their having counteracted the good intentions of the Executive. If an ill appointment should be made, the Executive for nominating, and the Senate for approving, would participate, though in different degrees, in the opprobrium and disgrace.
Hamilton made it abundantly clear that the nomination was left solely to the president, and believe that the Senate was largely there to prevent and deter the president from making bad decisions.
I’m pretty sure that Hamilton wouldn’t be impressed with the idea of the Senate going on strike for a year, as that is obviously not what he had in mind. The Senate’s job is to consider the president’s nominees, not to impose their preferred nominees on the president.
@Barry:
I have never said that the President shouldn’t nominate anyone. Indeed, by the language of the Constitution it would appear that he has no option in that regard. That’s a different question from whether the Senate is required to approve his nominee, or to give that nominee a floor vote. The language of the Constitution does not appear to require that and, in any case, as I have said three or four times now, I expect that ultimately the Senate will consider the nomination and that it will be rejected on a cloture vote.
@Jeremy R:
That poll was released after this post had been written.
Also, it appears that Fox phrased the question somewhat differently than either NBC/WSJ or CBS/NYT did, which can affect the outcome.
Nonetheless, as I said in the post above, “this is still early polling and somewhat speculative given the fact that President Obama has yet to name a nominee and we have yet to see any of the impact that Justice Scalia’s death and a Court with only eight Justices could have on important cases that the Supreme Court is dealing with this year.”
In other words,polling on this issue is likely to vary and may well change in the coming weeks and months. In the end, how voters are reacting to this will dictate how Republican leaders respond.
@Davebo:
But that’s one of the things he seems not to like about the Clintons. Hmmmmmm…
@Dave D:
The corollary is that the most important tactical/strategic consideration is the effect behavior has on the Nov. 8 election, given the new president can reverse any tilt Obama produces.
@Pch101:
Except that the Christian voters are already pretty reliable and always turn out, so firing them up a bit more is a low yield strategy.
How does this affect low turnout young people who use, for example, Planned Parenthood? This is getting into uncharted unknowable territory.
@charon:
It is probably a high yield strategy, though, in forestalling any primary challenge and getting reelected – probably the most important consideration to many of those bozos.
@charon:
I think that they’re going to be pretty irritated when their preferred candidates don’t win the nomination.
Contra Doug, it’s not the ‘outrage of the day’. It’s blatantly preventing a key operation of the government by leaving an 8-member court (4-4, no tie-breaker) and eliminating a critical ability of the office of the President to proceed. It’s not even hostage taking, there are no demands.
Instead it’s actively obstructing operations at the highest level in third branch of the Federal government. But hey, I’m not the one who went to law school. What should I care about the Supreme Court?