Another Senator Defects On “No Hearings, No Votes” As Public Opposition Rises

Another Republican Senator has broken ranks and called for hearings on the nomination of Merrick Garland, as another poll shows most Americans support hearings as well.

Merrick Garland Supreme Court Nomination

Another Republican Senator has broken with the caucus on the question of holding hearings and a vote on the nomination of Merrick Garland to the Supreme Court, and this one is a bit of a surprise:

Sen. Jerry Moran (R-Kansas) broke with Republican leadership this week by calling for the Senate to take up Merrick Garland’s nomination to the Supreme Court, a Kansas newspaper reported.

“I would rather have you (constituents) complaining to me that I voted wrong on nominating somebody than saying I’m not doing my job,” Moran said at a meeting with constituents, according to the Garden City Telegram.

“I can’t imagine the president has or will nominate somebody that meets my criteria, but I have my job to do,” Moran also said. “I think the process ought to go forward.”

The comments, which were made and reported on Monday but not widely noticed until Thursday, represent a significant departure within the Senate GOP ranks on the issue. A handful of moderate senators have publicly disagreed with Majority Leader Mitch McConnell’s stance that the Senate won’t hold hearings or vote on a high court nomination until the next president takes office. But, by and large, the conference has stood its ground.

While Moran is up for re-election to his second term this year, he is not considered to be especially vulnerable to either a primary challenge or to a challenge in a General Election at which Kansas will likely see its Electoral Votes go to the Republican nominee just as they have in every Presidential election since 1940 with the exception of the Lyndon Johnson landslide election of 1964 regardless of who the Republican nominee happens to be. Additionally, unlike the other two Republicans who have broken with the party line on hearings with respect to the Garland nomination, Mark Kirk and Susan Collins, Moran can hardly be described as a “moderate” Republican. The Heritage Foundation, for example, gives him a 76/100 lifetime rating, and the American Conservative Union gives him an 88/100 lifetime rating. Moran also headed the Republican Senatorial Campaign Committee during the 2014 election cycle and played a significant role in helping the GOP win nine seats and control of the Senate. This defection, in other words, is seemingly more significant than the previous two and perhaps indicative of a trend that, while it may be slow to develop, could cause Senate Republicans to rethink their position at some point before the end of the year.

The news of Moran’s defection came at the same time as the release of yet another poll showing that Americans continue to stand opposed to the position the Senate GOP is taking with respect to Garland’s nomination:

Following President Barack Obama’s nomination of Merrick Garland to fill the open seat on the Supreme Court, a new CNN/ORC poll finds two-thirds of Americans want the Senate to hold confirmation hearings on his candidacy, and a majority of Americans say the Senate should ultimately vote to confirm him.

According to the survey, 52% say Garland ought to be confirmed, 33% that the Senate should not vote in favor of his nomination. Another 15% are unsure. That’s about on par with public support for Obama’s previous two Supreme Court nominees, Elena Kagan and Sonia Sotomayor, as well as other current justices on whose nominations we have polling, including Samuel Alito, Ruth Bader Ginsburg and Clarence Thomas. Chief Justice John Roberts is the only one to enter the confirmation process with significantly greater public support: 59% said the Senate should vote in favor of his nomination.

Most Democrats (80%) and a plurality of independents say Garland should be approved (48% vote in favor, 37% against), but Republicans lean against it: 26% say the Senate should vote to confirm, 54% against.

Assessing Garland himself, 45% say they have a positive impression of him so far, 34% are neutral, 14% negative. Just 13% say they feel he is not qualified to serve on the Supreme Court, around a quarter say he is among the most qualified candidates out there. A majority, 56%, say that as a Supreme Court justice, he would be “about right” ideologically, more than said so about any other recent nominee. Just 25% say they think he would be too liberal as a justice.

(…)

Turning to process, most Republicans disagree with the position taken by Senate Majority Leader Mitch McConnell, who says the Senate will not hold hearings on Garland’s confirmation. Among Republicans, 55% say the Senate should hold hearings on Obama’s choice, as do 67% of Democrats and 68% of independents. The 64% overall who say there should be hearings is about the same as the 66% who said so in February before Obama named his choice to fill the vacancy.

Most Americans, 57%, say the choice for the next justice should rest with Obama and not with the next president, and a similar majority, 58%, say that senators who believe the seat should be filled by the next president would not be justified in voting against Garland for that reason. These views are sharply divided by party, however, with 85% of Democrats saying Obama should make the appointment, while just 26% of Republicans agree. Most Republicans (57%) say a vote against Garland because a Senator believes the next president should fill the seat is justified, while three-quarters of Democrats (76%) say it is not justified.

Most side with Obama on the Supreme Court nomination, and he fares better than Congress or the GOP leadership there on several other measures tested in the poll.

While previous polling had shown that most Americans opposed the Senate GOP’s intransigence on the issue of hearings or a vote, this is the first poll that appears to show that Republican voters are beginning to turn on the idea of not giving President Obama’s nominee a hearing or vote as has been the normal course of action since the 1920s. It’s possible that this is attributable to the fact that most of polling prior to this had been taken before there was a name and a face attached to the nomination, but whatever the reason it could represent an important turning point in this showdown between the Senate and the White House. Prior polling had shown that while the public as a whole opposed the “No Hearings, No Votes” position of Senate GOP leadership, there was still strong support for the position among Republican voters. If that’s beginning to change, then it’s possible that the political calculus that led Senate Majority Leader McConnell and Judiciary Committee Chairman Chuck Grassley to make their initial pledge will change as well and we’ll actually see hearings out of the Senate before the end of this year. If that does happen, though, I wouldn’t expect it until much later this year, and perhaps not until the lame duck period after the election in November. It won’t be easy for the more strident members of the Senate GOP Caucus to accept a change in position to begin with, but if it becomes apparent to them that their own choice is to accept the nomination that President Obama has made or accept one that President Clinton, or President Trump, might make, then even the most conservative members of the Senate may come to see Merrick Garland as the best alternative available to them.

FILED UNDER: Campaign 2016, Congress, Law and the Courts, Public Opinion Polls, US Politics, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. stonetools says:

    Political pressure works!

    Despite that, I think that the Republican Senators are just never going to enable the accession of a fifth liberal on the Supreme Court. It has been a major tenet of Republican orthodoxy since the 1960s that the Republicans must ensure a conservative majority on the Supreme Court. To depart from that in any way is to risk a primary challenge in this or future elections.
    I am now of the opinion that no Republican Senator is ever going to vote for Garland even in the lame duck session, even if it makes sense (because Hillary will pick a more liberal candidate). Thanks to the crazy Republican base, the Congressional Republicans just don’t do logic anymore.




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  2. JKB says:

    Garland is a clear and present danger to 2nd amendment rights

    An assessment by Dave Kopel in 2008

    Merrick Garland is a judge on the U.S. Court of Appeals for the D.C. Circuit. He could be counted on not only to oppose Second Amendment rights in general, but even to nullify explicit congressional statutes that protect those rights.

    So the defecting Republican Senators may find pressure from the other side, from a very active electorally side, soon.

    Or they could buckle, hold the hearings in Sep/Oct and make gun control front and center of the hearings and the election.




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  3. HarvardLaw92 says:

    @JKB:

    An NRA mouthpiece has a problem with Garland. Consider me shocked …

    This entire “Garland hates the 2nd Amendment” nonsense is based on just 2 cases:

    1) NRA v. Reno – which in fact had nothing at all to do with the 2nd Amendment. Garland ruled to uphold DoJ policy regarding the retention of records of background checks for 6 months, ruling against an NRA backed challenge which sought to have them destroyed immediately following the conclusion of the purchase to which they ostensibly applied.

    Garland’s ruling was correct in this case. The statute in question does mandate destruction of the records, but it does NOT impose any sort of timeframe in which that destruction must occur. He correctly deferred to an agency’s interpretation of an ambiguous statute.

    2) The second case was one in which he wasn’t involved at all – Parker v. DC, (which eventually became Heller v. DC). He voted in favor of en banc review, but was not a member of the appellate panel which considered the case. Interestingly, A. Raymond Randolph, who conservatives adore, also voted in favor of en banc review on that case.

    This is, at best, reaching by the Koch / Templeton 501(c)(4) org JCN via its very imaginative chief counsel Carrie Severino. No surprises there – their intent (to buy a conservative judiciary which will rule as they prefer) has never been obscure.




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  4. grumpy realist says:

    Totally OT, but if anyone has noticed the National Enquirer story about Cruz, look at the comments over at Jezebel and Balloon Juice. Quite amusing.




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  5. Pch101 says:

    The Republicans being what they are, they have two options:

    -Fight, fight, fight (the Teahadist method)

    -Attack every nominee as a — ohmigawd! — “liberal” (the more old school approach)

    Obama’s tactic of appointing of a relative moderate isn’t going to do much to help him with his opponents, either way. The only thing that will satisfy either of these GOP mindsets is the nomination of a candidate who is to the right of Scalia; they want unconditional surrender, not a compromise.




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  6. C. Clavin says:

    @grumpy realist:
    everyone says he is a total d-bag…why would anyone have an affair with him???
    On the other hand the National Enquirer did break the Tiger Woods affair…so maybe???




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  7. Mikey says:

    @C. Clavin: The National Enquirer had the dirt on John Edwards, too. They could very well be right about Cruz.




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  8. bloated sack of protoplasm says:

    …everyone says he is a total d-bag…why would anyone have an affair with him???

    So U have never met a couple where one mate is a skunk and the other is a sweetheart?
    Don’t get out much?




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  9. grumpy realist says:

    @Mikey: #CubanMistressCrisis




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  10. de stijl says:

    I wouldn’t have much in common politically with Sen. Moran, but I applaud his courage.

    He’s going to take heat for this from his colleagues and a very healthy slice of his constituents. And he knew going in that this would happen yet he did it anyway because he thought it was the right thing to do.

    While Moran is up for re-election to his second term this year, he is not considered to be especially vulnerable to … a primary challenge

    His vulnerability just went way up and he did it anyway.

    Good on him.




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  11. Jenos Idanian says:

    I’m starting to see why some see the GOP as the Stupid Party.

    In 2010 and 2014, the GOP establishment made a whole bunch of promises to the base in exchange for their electoral support. The base delivered, and the establishment didn’t deliver. Now, simply trying and failing could be forgiven, but in many cases they didn’t even try. Now the base feels betrayed because they were betrayed, and they are pissed.

    So McConnell, apparently seeing this, made a promise regarding Garland’s nomination. It was a stupid promise to make, but he made it, and now he is stuck with it.

    Personally, I want Garland to get his confirmation hearing. And I want him to be treated just like a Republican nominee. In fact, I want him to be treated like Republican nominees have been treated.

    That seems a bit harsh, but he’s in the union pockets and is horribly wrong on the 2nd Amendment, and he’s a smart man and experienced, so he should have known what he was getting himself into.

    First up, in honor of Ted Kennedy’s lies about Robert Bork, some Senator should declare that in Merrick Garland’s America, workers will be forced to join unions and pay union dues, whether or not they want to, and federal agents will go door to door to confiscate guns.

    When Clarence Thomas was nominated, his video rental records were searched and released. So I want to see Garland’s Netfix queue and his Google search history.

    When John Roberts was nominated, the New York Times tried to unseal his son’s adoption record. I can’t think of anything equally intrusive about Garland, but I’m sure there’s something.

    For too long, Democratic nominees have skated, while Republican nominees have been subjected to the most intrusive invasions and slanderous lies. It’s time for a little karmic payback.




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  12. bloated sack of protoplasm says:

    @Jenos Idanian:..For too long, Democratic nominees have skated, while Republican nominees have been subjected to the most intrusive invasions and slanderous lies. It’s time for a little karmic payback.

    I am victim hear me whine!




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  13. LaMont says:

    but if it becomes apparent to them that their own choice is to accept the nomination that President Obama has made or accept one that President Clinton, or President Trump, might make, then even the most conservative members of the Senate may come to see Merrick Garland as the best alternative available to them.

    Yet, if the GOP weight this long the damage will have already been done. That’s why it boggles my mind that Republicans are choosing to do this (if they indeed do it). They’re stuck between a rock and a hard place with a few crappy alternatives for a way out and they are choosing the crappiest alternative! They have proven to have absolutely no foresight whatsoever!




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  14. Unsympathetic says:

    @Jenos Idanian:

    in honor of Ted Kennedy’s lies about Robert Bork

    Never let fact get in the way of a good argument.

    Kennedy’s statement wasn’t so much wrong as it was expressed in the kind of intemperate manner that ruffles feathers in Washington. The fact is, Bork believed only “political” speech was protected by the First Amendment; he, like many other conservatives, didn’t believe that women have the right to make choices about whether to carry pregnancies to term; he was critical of the idea that illegally obtained evidence shouldn’t be used in court; and while nominally agreeing that the 14th Amendment prohibited racial discrimination – as opposed to discrimination based on gender, which he thought it didn’t – in practice, he opposed every single piece of legislation ever passed in order to guarantee the civil rights of African Americans.




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  15. steve s says:

    Robert Bork thought Jim Crow laws were perfectly fine and the Civil Rights Act was unconstitutional. And that states should be free to make Birth Control illegal. And that women shouldn’t be legally protected from discrimination.

    He got a hearing, and a vote, and was rightly rejected.




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  16. James Pearce says:

    @Jenos Idanian:

    For too long, Democratic nominees have skated, while Republican nominees have been subjected to the most intrusive invasions and slanderous lies.

    Even Jenos is in favor of hearings!

    @JKB:

    Garland is a clear and present danger to 2nd amendment rights

    I don’t think you know what “clear and present danger” means…but whatever, you seem to be in favor of hearings too.

    After all, wouldn’t it be cool to expose Garland’s gun-grabbing tendencies by subjecting him to intense Senatorial questioning under oath? Nah…..

    Best to just “stay the course” and hope for the Deus Ex Machina that’s supposed to come save the Republicans from their own stupidity.




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  17. David M says:

    @Jenos Idanian:

    And I want him to be treated just like a Republican nominee. In fact, I want him to be treated like Republican nominees have been treated.

    So you want the GOP to have some hearings and then confirm Garland?




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  18. Jenos Idanian says:

    @Unsympathetic: Oh, yes, it was intemperate. I recall a lot of Kennedy’s Democratic colleagues who spoke against him. Like… um… uh… I’m sure that someone told him he went too far.

    But I always found it fascinating how it’s so bloody obvious that abortion is covered by the Constitution, but owning guns isn’t. How the hell does that work, anyway?




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  19. Jenos Idanian says:

    @David M: How about a hearing, then rejecting him for the aforementioned reasons?




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  20. steve s says:

    Alito was confirmed in the senate by unanimous consent approximately 9 weeks after being nominated. Roberts was nominated at the end of July and confirmed at the end of september with 22 Democrats in the senate voting for him.

    So, yeah, let’s treat garland like that. I’m down.




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  21. steve s says:

    The GOP is just petulant because the reign of conservative derp is about to be over, for good, and there’s nothing they can do to stop it, just delay the inevitable reckoning. It’s fun to watch jerks lose.




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  22. James Pearce says:

    @Jenos Idanian:

    How about a hearing, then rejecting him for the aforementioned reasons?

    How about calling your congressmen and telling them that?




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  23. Jenos Idanian says:

    @James Pearce:How about calling your congressmen and telling them that?

    I would, if my Congressmen had any say in the matter. I should take it up with my Senators — there’s a difference, you know.

    But I choose my fights. I am not overly invested in whether or not he gets a hearing. I think he should, but I won’t lose any sleep if he doesn’t. As I said, the “no hearings” announcement before the nominee is announced was stupid, but it’s hardly a huge deal-breaker for me.

    All it did was confirm what I already believed: McConnnell has no clue what he’s doing, and should be kicked out.




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  24. An Interested Party says:

    The GOP is just petulant because the reign of conservative derp is about to be over, for good, and there’s nothing they can do to stop it, just delay the inevitable reckoning. It’s fun to watch jerks lose.

    This. So many conservatives are acting like they are entitled to this seat, as if they should have a 5-4 edge on the court in perpetuity…if only Scalia could have waited to drop dead when there was a Republican president, right? And the whining from Jenos about how all those poor Republican nominees were just treated terribly is so precious…McConnell talks about how he wants the next president to make the choice…can’t wait to see his argument about why President Hillary Clinton shouldn’t be the one to make that choice…




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  25. stonetools says:

    @Jenos Idanian:

    How about a hearing, then rejecting him for the aforementioned reasons?

    The problem there is that if there are hearings, it will be obvious that he can’t be rejected for those reasons, since there is no evidence at all that he is in the pocket of the unions or a clear and present danger to the 2nd Amendment. (See HL92’s post at the top).
    That btw , is why McConnell doesn’t want hearings. The hearings will simply demonstrate beyond all doubt that the Republicans have no case to to make against Garland, and the pressure to vote to confirm him will grow to irresistible proportions. It will be like the Roberts confirmation hearings in reverse. The Democrats tried to resist his confirmation too, and couldn’t, because :
    1. His credentials were impeccable
    2. There was no paper trial of controversial opinions.

    McConnell fears the same thing will happen if he allows hearings, especially since there are 24 Republicans who will have to defend a no vote in a general election. Politically, I think he’s right. IF Garland makes it to a confirmation hearing, he is 90 per cent of the way home.




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  26. David M says:

    @Jenos Idanian:

    You said wanted him treated like a GOP nominee. That only could mean you want him confirmed.




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  27. James Pearce says:

    @Jenos Idanian:

    I would, if my Congressmen had any say in the matter. I should take it up with my Senators — there’s a difference, you know.

    Yeah, here’s the difference: While not every Congressman is a Senator, every Senator is, in fact, a Congressman.

    I am not overly invested in whether or not he gets a hearing. I think he should, but I won’t lose any sleep if he doesn’t.

    Even if you disagree with Obama and Garland politically, you should still care enough about your own damn country and its constitution to be a little worried if he doesn’t get a hearing.

    As I said, the “no hearings” announcement before the nominee is announced was stupid, but it’s hardly a huge deal-breaker for me.

    Huh….”stupid” is a deal-breaker for me, but that’s just me.

    McConnnell has no clue what he’s doing, and should be kicked out.

    If you don’t live in Kentucky, start with your own guy.




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  28. Buffalo Rude says:

    I would, if my Congressmen had any say in the matter. I should take it up with my Senators — there’s a difference, you know.

    Except that “congressman” can mean either a United States Senator or member of the House of Representatives. Congress is the name given to the bi-cameral legislative branch of government.




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  29. stonetools says:

    If that does happen, though, I wouldn’t expect it until much later this year, and perhaps not until the lame duck period after the election in November.

    This nomination may not be on the table after the November elections. Every White House pronouncement on Garland has spoken about a quick confirmation, and having him seated by the beginning of next term. If the White House follows through on that, and decides to play hardball, Obama can just say that the nomination will be withdrawn by the start of the general election campaign, having been persuaded by the GOP argument that the next President should make this decision. The GOP discussion after that will be interesting, to say the least.




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  30. bloated sack of protoplasm says:

    What Famous Document includes these words?

    All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

    Anybody!




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  31. Just 'nutha ig'rant cracker says:

    @Jenos Idanian: Can I assume that you are also good with him being approved as were Thomas and Roberts?




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  32. Jenos Idanian says:

    @David M: You said wanted him treated like a GOP nominee. That only could mean you want him confirmed.

    You mean like Bork, Ginsburg, and Miers?

    Nixon also had four candidates that didn’t make it.

    Clinton and Obama’s nominees all skated, and Obama’s nominees so far have been treated with kid gloves.




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  33. David M says:

    @Jenos Idanian:

    Democrats weren’t the reason that Ginsburg and Miers weren’t confirmed, and you know that. Garland is pretty much the opposite of Bork, so it’s not clear why you would bring him up.

    And how would questioning Nixon’s nominees be remotely relevant to Obama’s? Nixon resigned in disgrace, facing impeachment while one of the hallmarks Obama’s Presidency has been it’s lack of corruption and scandal. It’s unlikely there will be another one as scandal free for a very long time.




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  34. stonetools says:

    @Jenos Idanian:

    Why don’t you some research, sonny boy, and see if the Democrats had anything to do with Ginsburg’s or Mier’s withdrawals. Bork was discussed above. He got his full hearing, and was defeated in a bipartisan vote ( Six Republicans voted No).

    Clinton and Obama’s nominees all skated, and Obama’s nominees so far have been treated with kid gloves.

    Well, they were all excellent candidates, as is Garland. Certainly, they were not mediocre, or known racists, like Nixon’s candidates.

    Here is a sensible conservative’s view on the Garland nomination:

    Because Obama likely will insist that Garland be seated by the October 3 start of the Court’s term, and thus likely will withdraw Garland if Rs wait until after the election, Rs should hedge their bets rather than bet the company. Start a hearing on August 1, days after the Democratic convention ends (might even limit post-convention bounce). Knowing the nominees and whether there will be a third-party candidate, the odds for the fall campaign will be clearer. Vetting Garland will take at least three months, so the added delay is short. Subject Garland to searching queries as was done with Samuel Alito, but without the nastiness and character assassination Alito endured. A vote taken before Labor Day (September 5) — while Americans are still at the beach — will allow Garland to quietly take his seat with ease. Were Obama to yank Garland before August he would signal that his nomination was a political ploy from the start.

    Refusing to meet with the gentlemanly, moderate Garland is utterly foolish. Were someone like hyper-partisan hack Eric Holder nominated such a refusal, backed by ample historical precedent, would be eminently justified. Not here. Dumbest of all are GOP leaders calling for the voters to have a say in who sits on the Court. Suppose Hillary wins, but without enough coattails to flip the Senate. She will surely nominate a far-lefty — one at least a decade younger than Garland’s 63 years. Videos of GOP senators hailing the voters will put them in a box of their own creation, and make blocking even a far-left nominee a political loser.

    Link

    http://spectator.org/articles/65829/don’t-bet-court-confirm-garland-augusthttp://spectator.org/articles/65829/don’t-bet-court-confirm-garland-august




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  35. James Pearce says:

    @Jenos Idanian:

    You mean like Bork, Ginsburg, and Miers?

    Thank you for reminding us all of Harriet Miers. (Snicker.)




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  36. Jenos Idanian says:

    @James Pearce: @stonetools: Why don’t you some research, sonny boy, and see if the Democrats had anything to do with Ginsburg’s or Mier’s withdrawals.

    Oh, I know why they didn’t make it. Hell, I agree with both not being on the Court. But David M’s words were You said wanted him treated like a GOP nominee. That only could mean you want him confirmed.

    It can only mean that I want Garland — who, as I stated above, is woefully unqualified for the Court, based on the two grounds I cited above — to get the same kind of treatment that Democrats and the media (But I Repeat Myself) have treated Republican nominees in the recent past.

    But asking the Democrats to use a single standard and not be hypocrites is a bit much to ask. If the Republicans treated Garland like Democrats (both in the Senate and in the media) have treated past Republican nominees, I fully expect howls of outrage and livid denunciations. After all, only Democrats get to act like that!




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  37. sam says:

    @Jenos Idanian:

    It can only mean that I want Garland — who, as I stated above, is woefully unqualified for the Court, based on the two grounds I cited above

    Uh, did you read Harvard’s discussion of Garland’s 2d Amendment jurisprudence upthread?




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  38. steve s says:

    @An Interested Party:

    so many fun daydreams. Imagine hillary telling the NYT “I really hope the Senate doesn’t vote for Garland. As soon as I get the nomination i’ll get Barry to yank him. I want somebody to the left of Saul Alinski instead. Hope they keep it open!”

    😛




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  39. steve s says:

    The GOP is so boy-who-cried-wolf because their special followers actually believe them. “It’d be hard to be more liberal than Merrick Garland,” Mitch McDipshit just said. They’ve said such nonsense so much, it’s now meaningless, and so at this point Dems could nominate actual leftists, and if the GOP called them communists, everyone would roll their eyes and say “Yeah whatever, idiot.”

    The GOP will, if everything goes right, replay what happened in California, rapidly become irrelevant, and like in California, the situation will be rapidly fixed as soon as the cretins are out of the way.




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  40. Jenos Idanian says:

    @sam: Yes, I did, and I rejected it. The law said the records must be destroyed. It did not say “the records shall be kept for a while, then destroyed.” What would be the purpose of keeping them six months, except to circumvent the intent of the law?

    If Congress wanted the records kept for six months, then they would have said so. They didn’t say so, they said destroyed. So that means destroyed, not put in a box with a big red label saying “destroy these six months from now.”

    Remember, this law predates ObamaCare, when dates written into the law are to be considered mere suggestions, not actual laws. This is under the old standard, when the letter of the law actually meant something.




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  41. steve s says:

    It can only mean that I want Garland — who, as I stated above, is woefully unqualified for the Court, based on the two grounds I cited above

    Well, jenos really just cemented everyone’s opinion of his intellectual faculties.




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  42. James Pearce says:

    @Jenos Idanian:

    But asking the Democrats to use a single standard and not be hypocrites is a bit much to ask.

    You’re the one complaining about how Republican nominees are treated and then arguing that treatment should be emulated, if not escalated. (Bork did get a hearing, after all.) And you’re looking for hypocrites in other people?

    You see, when you go the tit for tat route, you don’t get to say, “No, no, I only get to punch you.”




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  43. HarvardLaw92 says:

    @Jenos Idanian:

    If Congress wanted the records kept for six months, then they would have said so. They didn’t say so, they said destroyed

    It doesn’t work that way. If Congress wanted a time period of any sort imposed on the destruction, then it has the power to do so by including verbiage to that effect in the statute(s) that it constructs. It failed to do so, resulting in an ambiguous statute. In instances where statutory language is ambiguous, executive branch agencies tasked with implementing those statutes must, by necessity, derive interpretative policy with regard to how that implementation will be carried out otherwise you’d have a chaotic situation where each individual officer decided for him/herself what interpretation is acceptable. The policy of the courts is to always defer to this agency interpretation except in instances where it clearly violates the mandates of the statute in question or some tenet of the Constitution.

    In this case, it did neither. If Congress wanted them destroyed immediately, then it has to explicitly say so, otherwise it’s fair game with regard to how long an agency decides it wants to wait before destroying them. Congress, of course, retains the ability to change the statute to mandate this policy of immediate destruction whenever it gets the urge to do so. Despite having had 16 years since Garland’s (correct) ruling in which to act, it hasn’t, so we must ascertain that it either 1) can’t act to change the statute or 2) has no interest in acting to change the statute. Given periods of Republican control of both houses of Congress during a Republican presidency subsequent to that ruling, the evidence soundly points towards option 2. This, like most of your attempts to interpret the law, is more a case of “I do not like the ruling” than “the ruling was legally flawed, and here is why …”

    What would be the purpose of keeping them six months, except to circumvent the intent of the law?

    Aside from the fact that it doesn’t violate the law (you’ve been told too many times to count now that trying to be an attorney is a losing proposition for you), the interregnum allows for audits of the records to ensure, among other things, that the background check process isn’t being used for impermissible purposes.




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  44. HarvardLaw92 says:

    @Jenos Idanian:

    Nixon also had four candidates that didn’t make it.

    Let’s (gleefully) examine those four:

    Clement Haynsworth – erstwhile segregationist opposed across the spectrum. Was given a hearing, and rejected by the Senate 55 to 45, with 38 Democrats and 17 Republicans voting against his confirmation.

    G. Harrold Carswell – 58% reversal rate as a district court judge. Voiced support for segregation during a run for political office (Nixon’s pandering to the South couldn’t have been any more blatant …). Viewed across the spectrum as being incompetent. Given a hearing and rejected by the Senate 51 to 45, with 38 Democrats and 13 Republicans voting to reject his confirmation.

    Hershel Friday & Mildred Lillie – both nominations were withdrawn by Nixon after the ABA publicly rated both candidates as unqualified. The Senate never considered either of them.

    As for the rest of Nixon’s nominees (Burger, Blackmun, Powell and Rehnquist) all were easily confirmed by large majorities.

    Your victim complex truly knows no boundaries (and has a tenuous connection, at best, with the facts). 😀




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  45. Scott O says:

    It seems pretty clear to me that God wanted Obama to appoint Scalia’s successor. Why do the Republicans hate Him so much?




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  46. David M says:

    @Jenos Idanian:

    Garland — who, as I stated above, is woefully unqualified for the Court, based on the two grounds I cited above

    Using two weak examples as evidence of why someone is “woefully unqualified” pretty much proves the opposite.

    It it worth noting that the GOP Senate disagrees with you, as their “no hearings, no votes” positions indicates a they believe this nominee is qualified, and hearings would make the GOP obstruction look bad. If they had any confidence that he was remotely radical, out of the mainstream or unqualified, they would be excited at the prospect of the hearings.

    It is an extremely dangerous development for the court and the country that the GOP appears to be establishing a precedent where the opposition party cannot seat Justices on the Supreme Court. How long until that includes other federal courts? You seem less concerned with this country, the courts or the constitution than you do with cheering on the GOP to score political points. As the leader of your party would say….Sad!




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  47. Jenos Idanian says:

    @James Pearce: You’re the one complaining about how Republican nominees are treated and then arguing that treatment should be emulated, if not escalated.

    You’re goddamned right I am.

    Were the examples I cited above unacceptable? To me, yes, they were.

    To your side? They were perfectly acceptable. I base that on the simple observation that they were accepted. There was no backlash, no actions to condemn and ostracize the people who took those actions. There were no bad consequences for the attacks on Bork, Thomas, and Roberts.

    Trying to take the high road — treating Democratic nominees with a modicum of respect — achieved absolutely nothing. I repeat: the New York Times pushed to get John Roberts’ adopted son’s sealed records unsealed purely for a fishing expedition, and the backlash was minimal from the left.

    Playing nice got the attacks escalated. So it’s time to try something new.




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  48. James Pearce says:

    @Jenos Idanian:

    You’re goddamned right I am.

    So you concede your own hypocrisy, even as you condemn others for it? That’s rich.

    Trying to take the high road — treating Democratic nominees with a modicum of respect — achieved absolutely nothing.

    Be disrespectful at the hearings, then.

    Because while you justify your party’s stance by pointing out all the awful things that happened in the past, the rest of us know exactly why the Republican party is refusing to hold hearings:

    Cowardice.




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  49. HarvardLaw92 says:

    @Jenos Idanian:

    I repeat: the New York Times pushed to get John Roberts’ adopted son’s sealed records unsealed purely for a fishing expedition, and the backlash was minimal from the left.

    Do you have any evidence to support this assertion which doesn’t link back to / originate from a rumor posted by Drudge?

    We’ll wait while you furiously Google in a futile effort to look like less of a moron.




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  50. James Pearce says:

    @Jenos Idanian:

    You’re goddamned right I am.

    Well, it’s nice to see you admit to your hypocrisy, even as you condemn others for it.

    Trying to take the high road — treating Democratic nominees with a modicum of respect — achieved absolutely nothing.

    If you must be disrespectful, then be disrespectful at the hearings.

    Besides, what do you hope to achieve? If your expectation is that no Democratic nominee will ever be seated unless Democrats control everything, you seriously need to re-adjust your expectations.

    Face it: Republicans in Congress are cowards. Fear is their primary motivator, fear of their own supporters, fear of brown people and liberals, fear of taking a stand and fear of getting called out because of it. This “no hearings” position has more to do with that than with what happened to Bork or Roberts or anyone else.




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  51. James Pearce says:

    Apologies for the double post. I thought it was lost in transmission…




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  52. Andre Kenji says:

    It´s hard to make comparisons because for decades the Democrats had a large Conservative Wing that would vote with Republicans against Liberals, but the last Democratic President that had a vacancy in SC when the Republicans had a majority in Senate was Grover Cleveland. Republicans did not have majorities to give “harsh treatment”(Or whatever) to Democratic SC nominees until now, it´s as simple as that. But there is always Abe Fortas.

    That makes a LARGE difference. On the other hand, SC nominees should face harsh treatment and lots of questioning in the Senate hearings, for obvious reasons.




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  53. steve s says:

    Wait til the low-info GOP voters figure out that the conservative majority died with Scalia, and that’s gone forever. Obama will fill Scalia’s seat with Garland (stopping Garland will be as possible at this point as repealing Obamacare), then Hillary will replace Kennedy and RBG with some 48-53 yro solid liberals, and it’s a new day.




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  54. Rafer Janders says:

    @steve s:

    Wait til the low-info GOP voters figure out that the conservative majority died with Scalia, and that’s gone forever. Obama will fill Scalia’s seat with Garland (stopping Garland will be as possible at this point as repealing Obamacare), then Hillary will replace Kennedy and RBG with some 48-53 yro solid liberals, and it’s a new day.

    Clinton may even get to replace Breyer and Thomas, Breyer because he may retire, and Thomas because, although 68 now, he’s not in good shape and may have to survive nine more years before there’s an outside chance a Republican will regain the presidency. If Obama gets three Justices and Clinton gets four, that’s it, that’s the whole ballgame for a generation.




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  55. gVOR08 says:

    Tap, tap, testing. Is this thing on? Yesterday I thought I was having home wifi issues. Turns out it’s just OTB that’s impossibly slow.




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