Most Americans Oppose GOP’s “No Hearings, No Votes” Position On Garland Nomination

It increasingly appears that the GOP is on the losing side of the argument over whether to hold hearings and a vote on the nomination of Merrick Garland to the Supreme Court.

Merrick Garland Supreme Court Nomination

A new series of polls finds that the American public believes that the Senate should hold hearings and a vote regarding the nomination of Merrick Garland to the Supreme Court, and that Garland should be confirmed. This raises more questions about just how committed Republicans will be to sticking with their “No Hearings, No Votes” position adopted in the immediate aftermath of the Supreme Court Justice Antonin Scalia in February.

First up, there’s a new poll from Monmouth University that finds majority opposition to the Senate GOP’s refusal to act and a large majority that believes that the GOP is ‘playing politics’ with the Supreme Court:

More than three-fourths of Americans say Senate Republicans are “playing politics” by refusing to take up President Obama’s nominee for the Supreme Court, according to a Monmouth University Poll released Monday.

Overall, 77 percent of Americans say they think Republicans are “playing politics” by not allowing nominee Merrick Garland to get a hearing. That total includes 62 percent of surveyed Republicans.

Senate Republicans say filling the late Justice Antonin Scalia’s seat should be left to the next president so that voters have a say in the process.

“We think the important principle in the middle of this presidential election which is raging, is that the American people need to weigh in and decide who’s going to make this decision, not this lame-duck president on the way out the door, but the next president, next year,” Majority Leader Mitch McConnell (R-Ky.) told Fox News Sunday.

But only 16 percent of voters in the Monmouth University Poll said they believe that argument.

At 28 percent, self-identified Republicans were more likely to say that lawmakers were trying to include Americans in the process, compared to 13 percent of independents and 9 percent of Democrats.

While a handful of Republican senators have said they are willing to meet with Garland, the GOP has held firm on denying Garland a hearing or vote.

Now that Obama has nominated Garland, 69 percent overall said the Senate should give him a hearing, including 56 percent of Republicans.

That’s an increase from a Morning Consult poll released last week, which found that less than half — 43 percent — of GOP voters thought Garland should get a hearing.

Nearly two-thirds told Monmouth that they didn’t know enough about Garland to know his political ideology, and nearly half hadn’t heard enough about him to weigh in on if he was qualified to be on the Supreme Court.

Generally, 53 percent of Americans also said they believe the president should nominate someone to fill a vacancy, and the Senate should take up the nomination, even if they occur at the end of a president’s term.

The details of the Monmouth University Poll can be found at this link, and the numbers are generally the same in a new poll from CBS News and The New York Times:

A majority of Americans think that the Senate should hold a vote on Supreme Court nominee Merrick Garland, according to new details from a CBS News/New York Times poll out Tuesday.

Just over half (53 percent) of Americans surveyed would like the Senate to vote on President Barack Obama’s Supreme Court pick, while 42 percent believe they should wait until the next president is chosen.

Last week Obama nominated Garland — the chief judge of the United States Court of Appeals for the District of Columbia Circuit — to serve on the Supreme Court. Senate Republicans are refusing to hold any hearings or votes on Garland, maintaining that the next president should choose the nominee.

Predictably, support for allowing Garland at least a vote breaks down along party lines: 75 percent of Democrats believe there should be a vote, while 65 percent of Republicans believe it should be held off.

Finally, a new Gallup poll finds similar numbers in support of Garland’s confirmation:

A majority of Americans believe President Obama’s Supreme Court nominee Merrick Garland should be confirmed, according to a Gallup poll released Monday.

The percentage of Americans approving of a Senate vote in his favor is about average for Supreme Court nominees soon after their selection is announced by the President, according to Gallup’s review of past polling. But the poll also suggests that Republicans’ argument that the next president should choose the successor to the late Justice Antonin Scalia hasn’t shifted the public opinion at large as to whether Garland should be confirmed.
According to the poll 52 percent of Americans favor Senate confirmation of Garland, while 29 percent of them oppose his confirmation. That level of support puts Garland slightly above the average percentage (51 percent) of Americans in the last 25 years who support nominees’ confirmation in their initial read of them.

A slim majority of Republicans — 51 percent — oppose Garland’s confirmation, but at similar or lesser levels than their opposition to the confirmations of Justice Elena Kagan (51 percent) and Justice Sonia Sotomayor (57 percent) when their nominations were first unveiled.

Of those Americans who oppose Garland’s confirmation, 67 percent say they oppose it because the next president should chose the nominee, while 20 percent say they oppose it on the basis of concerns about Garland himself.

These polls are consistent with nearly every poll that has been released on this issue since Justice Scalia died, and in the wake of the news last week that at least two Republican Senators — Mark Kirk of Illinois and Susan Collins of Maine — had broken with their caucus to call for both hearings and a vote for Judge Garland, who was named as President Obama’s Supreme Court nominee just last week. While this would seem to suggest that there is at least some pressure building on Senate Republicans to give Garland a vote, it’s not at all clear that this will be enough to break through the brick wall of opposition that currently exists among that group, or that it will have any impact on the opinions of the rest of the caucus or, most importantly, on the two men with the most power to decide how to proceed with regard to this nomination, Judiciary Committee Chairman Chuck Grassley and Senate Majority Leader Mitch McConnell. To a large degree, the entire argument that the Senate GOP is making right now regarding this nomination started with these two men when they both said, within hours after Justice Scalia had died no less, that there would be no action taken by the Senate on the vacancy created by his death until a new President was elected and sworn into office. Unless and until these two men change their mind, it’s unlikely the Senate will do much of anything.

Realistically speaking, it’s hard to see the logical basis for the Senate GOP’s position at this point. Holding hearings does not obligate them to hold a floor vote on the Garland nomination, for example, and even holding a floor vote doesn’t mean the Senate is obligated to approve Garland’s nomination. As it stands, in fact, it seems rather clear that Garland’s nomination would fail even if the Senate went forward with the regular order in how it handled the nomination. Because of the partisan makeup of the Judiciary Committee, it’s probable that Garland would get rejected at the Committee level notwithstanding his qualifications and solely on the issue of the timing of his nomination, which is an issue that Republicans seem united on at this point. Even if the nomination were sent to the floor after losing at the committee level, something that last happened with the nomination of Judge Robert Bork in 1986, it’s likely that the nomination would fail before a final up-or-down vote due to the unlikelihood that Democrats would be able to find fourteen Republicans to join them in seeking to invoke cloture. Given that, it’s somewhat baffling to me why Republicans don’t simply go through the motions of holding hearings and a vote that they will ultimately win, with the vote scheduled for just before the time when Congress will  be out of town for the political conventions and the summer recess. Theoretically, of course, the President could use his recess appointment power to get Garland on the Court, but the Supreme Court’s ruling in NLRB v. Canning provides that the Senate can get around this possibility simply by holding pro forma sessions at least once every three days, which would mean it is not in recess and thus that the Recess Appointment Power is not triggered. Alternatively, if the Senate takes the nomination to an up-or-down vote and rejects Garland, and there are certainly enough Republicans to do this, then they could end the process altogether and require the President to try to start the process all over again with very little time left in his term. In the long run, this seems like it’s far less risky than refusing at act at all.

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. grumpy realist says:

    Like toddlers, they’re going to hold their breath until they get their way.




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  2. Davebo says:

    Wow. Couldn’t have seen that coming!

    Keep backing yourself into a corner GOP. Trump will save you!




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  3. Pch101 says:

    77 percent of Americans say they think Republicans are “playing politics” by not allowing nominee Merrick Garland to get a hearing. That total includes 62 percent of surveyed Republicans.

    But most of that 62% (or whatever it is) will reward their party with their votes in November, so there is no incentive for the GOP to change.




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  4. Part of why the GOP isn’t going to schedule a vote is they likely want the opportunity to confirm Garland if (a) it looks like Clinton will win or (b) Trump gets the GOP nomination, the combination of which seems very likely. If they reject Garland outright in July or something, there’s no guarantee Obama will make another nomination.

    By leaving things they way they are, if Obama wants to withdraw the nomination to let Clinton have her choice, he (and she) has to take the PR hit from pulling his nomination for no good reason. Given the genuine griping from progressives over how non-progressive (skin-color, gender, and ideologically) Garland is, he’s surely better from conservatives’ than whoever Clinton has in mind, and I don’t think anyone in the Senate GOP thinks Trump has the acumen to choose a credible supreme court justice and I don’t see that changing in the next few months.




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  5. HarvardLaw92 says:

    provides that the Senate can get around this possibility simply by holding pro forma sessions at least once every three days, which would mean it is not in recess and thus that the Recess Appointment Power is not triggered.

    Hence quorum calls. Canning / pro forma nonsense only works because of the presumption that a quorum exists unless otherwise established. Any member of the Senate can issue a quorum call at any time, and once that happens, the actual existence of a Senate quorum must be physically established by the presence of a simple majority of senators in the Senate chamber, otherwise the Senate is in recess until such time as a simple majority reconvenes itself.

    Reid, Mikulski and Boxer plan to stay in DC all summer long for precisely this reason – to wreck Republican Senate campaigns by forcing essentially every sitting Republican senator to constantly jet back and forth to DC to prevent Democrats from opening a recess window.




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  6. HarvardLaw92 says:

    Note – from National Labor Relations Board v. Noel Canning:

    “But our deference to the Senate cannot be absolute. When the Senate is without the capacity to act, under its own rules, it is not in session even if it so declares.”

    Senate Democrats are conceivably going to have a great deal of fun at the expense of the Republicans this summer.




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  7. An Interested Party says:

    How delicious that the actions of Senate Republicans may cause the exact opposite of what they want to happen…rather than getting a conservative (which was never going to happen anyway) or even a moderate to replace Scalia, they may be stuck with Hillary picking a liberal and they may lose out on even having any say in the matter, as their behavior is just one more thing to help Democrats regain control of the Senate in November…McConnell is doing such a fabulous job…




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  8. anjin-san says:

    Thoughtful of Republicans to make this effort to hand control of the Senate back to Democrats.




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  9. Argon says:

    Overall, 77 percent of Americans say they think Republicans are “playing politics” by not allowing nominee Merrick Garland to get a hearing.

    23% of Americans are idiots. That’s about right.




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  10. gVOR08 says:

    @Argon: Odd. It’s usually 27%.




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  11. gVOR08 says:

    The real issue in US politics for some time has been reason v/ unreason. Most people pay little attention to politics. It’s hard to get them to see that the Republican Party, the daddy party, the party of Eisenhower, Ford, Reagan (who at least played the role of President well), and H. W. Bush, the party of business and main street, has lost any grasp on reality, that they’ve accepted a Bizzaro World defined by Limbaugh, Murdoch, et al.This is what Dems need to campaign on this year, that Republicans are off in the ozone. Trump and Cruz are the big argument, but this SCOTUS thing helps.

    Which is not to say individual Republicans aren’t rational. Grassley and McConnell are quite rationally pursuing their own careerist goals. Party loyalty, much less the good of the country, doesn’t much enter into it.




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  12. alanstorm says:

    @grumpy realist:

    To be fair, liberals do know a lot about acting like toddlers.

    But that’s not what this is about.

    Not that I expect a toddler to understand.




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  13. jewelbomb says:

    @Chris Lawrence:

    By leaving things they way they are, if Obama wants to withdraw the nomination to let Clinton have her choice, he (and she) has to take the PR hit from pulling his nomination for no good reason.

    By the Republican’s own logic, the reason he would pull his nomination is so that the voters get to have their say or whatever. Isn’t that the new rule Republicans made up when Scalia died? All Obama has to say is, “you wanted the next President to decide, now you’ve got it. Enjoy dummies!”

    Of course, this won’t make Republicans happy either, but nothing will, so it doesn’t really matter.




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  14. rachel says:

    @alanstorm:

    To be fair, liberals do know a lot about acting like toddlers.

    It’s all the babysitting we’ve been doing lately.




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  15. What percentage of people think the Republicans are playing politics, but that the Democrats would be doing the exact same thing if the situation were reversed and find all the feigned outrage rather annoying?




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  16. Blue Galangal says:

    @Stormy Dragon: I can’t really tell if you’re serious or not, but what makes you think that the Democratic Party – demonstrably the party of adults over the past 7 years – would be acting like this if the situation were reversed? Some members of the party might call for it, but the party itself (cf. Will Rogers) would not fall into lockstep with such an outrageous stance, to wit, not allowing hearings on a SC nominee for 11 months because of an impending presidential election.




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  17. @Blue Galangal:

    All the quotes saying they would do the same thing during the Bush administration. Now they never got the chance to act on those quotes, but do you seriously believe that if Ruth Bader Ginsberg had suddenly died in January 2008, that the Democrat-controlled Senate would have let George Bush choose her replacement?




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  18. stonetools says:

    @Stormy Dragon:

    Of course, the Democrats would act the same way, which is why appellate judges Roberts and Alito saw their Supreme Court nominations filibustered to death and why Joe Biden refused to give Judge Clarence Thomas a hearing in October 1991 (The so called Biden Rule).

    Oh wait-that didn’t happen in this space -time continuum. Well, maybe on Earth-3….




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  19. @stonetools:

    The Democrats did try to filibuster Alito. They just failed to get enough votes for it:

    On January 26, while vacationing in Switzerland, Senator John Kerry (D-MA) called for a filibuster to block Alito’s nomination.[16] Despite the support of his fellow Massachusetts Senator, Ted Kennedy (D-MA), Senator Hillary Clinton (D-NY)[6][7][8] and Harry Reid (D-NV), the top Democrat in the Senate, other Democrats were afraid the measure would backfire and were cautious to support it. Just one day after Kerry’s call for a filibuster, Reid further stated that the Democrats did not have the votes needed to sustain a filibuster to block the confirmation of Alito. “We’re going to have a vote Tuesday morning,” Reid said. “Everyone knows there are not enough votes to support a filibuster.”[17][18]

    The Democratic Senators from Massachusetts, John Kerry and Ted Kennedy, attempted to gain support for a filibuster of the nominee, however they gained little support even within their own party. The Senate voted for cloture on the nomination 72-25. Three senators didn’t vote, including Democrat Tom Harkin and Republican John Ensign, who had been injured in a car accident earlier that day. All of the members of the Gang of Fourteen voted for cloture with the majority.




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  20. An Interested Party says:

    The Democrats did try to filibuster Alito.

    Yes, but did they tell Bush not to even nominate someone and that they would do nothing if he did…




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  21. Tony W says:

    @Stormy Dragon: Are you suggesting that the Democrats attempt at a filibuster is somehow comparable to the Republicans saying “we won’t have hearings, no matter who the nominee is”?

    McConnell’s stance here is literally unprecedented. It’s just like climate change, you don’t have to *believe* for it to be true.




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  22. HarvardLaw92 says:

    @Stormy Dragon:

    That actually reads as though they didn’t try to filibuster Alito. Had they tried, there would have been, you know, an actual filibuster involved.




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  23. @Tony W:

    Are you suggesting that the Democrats attempt at a filibuster is somehow comparable to the Republicans saying “we won’t have hearings, no matter who the nominee is”?

    “The Dem’s didn’t filibuster Bush appointees!” “Yes they did” “Well it’s not the same!”

    As I said, as annoyed as I am by the Republican’s obstruction is; it’s clear to me the Democratic complaints about it are entirely situational. Much like the constant Democratic votes against the debt ceiling which suddenly be came irresponsible once there was a Democratic President, neither side has any actual principles beyond pure political will.

    Stop trying to insult my intelligence pretending this is about anything other than both sides calculating how much the voters will let them get away with.




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  24. Jen says:

    The key quote from that Wikipedia excerpt is:

    The Democratic Senators from Massachusetts, John Kerry and Ted Kennedy, attempted to gain support for a filibuster of the nominee, however they gained little support even within their own party.

    Emphasis added.

    The actions of a few in number are not the same and should not be equated with the current situation, which is a coordinated effort by all sitting members of the Senate of one party. Not just the members of the Judiciary Committee, but the entire Senate Republican Caucus. This is unprecedented, and as usual, they are not thinking about the precedent they are establishing.

    Republicans used to be much better at political chess. This feels more like they are playing tic-tac-toe and can’t figure out why they keep losing.




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  25. @Jen:

    Note that “little support” here is 24 of the 44 Senate Democrats at the time, including all of the senior leadership. If 57% of the Republicans in the Senate voted for something, would you say it could be accurately described as having “gained little support” within the party?




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  26. Rafer Janders says:

    @Stormy Dragon:

    “The Dem’s didn’t filibuster Bush appointees!” “Yes they did” “Well it’s not the same!”

    Read your own link, you idiot:

    The Democratic Senators from Massachusetts, John Kerry and Ted Kennedy, attempted to gain support for a filibuster of the nominee, however they gained little support even within their own party. The Senate voted for cloture on the nomination 72-25.




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  27. al-Ameda says:

    @alanstorm:

    To be fair, liberals do know a lot about acting like toddlers.
    But that’s not what this is about.
    Not that I expect a toddler to understand.

    Well, when over a 6 year period you’ve watched these entitled, spoiled twinkie-addled toddlers: (1) attempt to leverage their demands that ACA be repealed into two shutdowns of the federal government, and (2) attempt to leverage previously-said demands against raising the debt ceiling limit, and in fact stated a willingness to let the government default on its debt securities in order to get what they wanted … when you’ve watched those precious bedwetting little ‘snowflakes’ at work, you come to completely understand the toxic mess that is those toddlers’ play time.




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  28. @Rafer Janders:

    Again note that “little support” here is 24 of the 44 Senate Democrats at the time, including all of the senior leadership. If 57% of the Republicans in the Senate voted for something, would you say it could be accurately described as having “gained little support” within the party?




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  29. Rafer Janders says:

    @Stormy Dragon:

    That’s not what you said: you originally said “the Democrats would be doing the exact same thing” — and then, in support of that false claim, offered up an example in which the Democrats DID NOT do the “exact same thing” — an example in which some Democrats suggested filibustering a nominee, but did not actually succeed in filibustering that nominee because they couldn’t get enough other Democrats to go along. And those Democrats didn’t suggest that they wouldn’t consider any Bush nominee, but were rather specifically opposed to Alito because of his history.

    Here, by contrast, 100% of Republicans have said they would not consider ANY nominee, no matter how qualified. So once again, it’s not “the exact same thing.”




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  30. Grewgills says:

    Stormy, 57% < 98%. If you look very closely you'll notice that those two numbers are not the same. Pretending they are is what some people call a false equivalence.




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  31. Yeah yeah yeah, no true Scotsman, blah blah blah, Democrat obstructionism is completely different because they only do it for noble reasons blah blah blah always been at war with Eastasia.

    Whatever.

    I mean really, is it that hard to say “Yeah, Senate Democrats are hippocritical, they shouldn’t have done that”. But no, Party Loyalty supersedes every other principle so we’ll just barf out whatever lame rationalizations we need to justify whatever we’re doing this week.




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  32. Mikey says:

    @Stormy Dragon: Dude, if you can’t see the galactically-scaled difference between a failed gesture at filibustering a specific nominee for specified reasons and the pre-facto out-of-hand dismissal of any possible nominee regardless of identity or qualifications…well, there isn’t much anyone can say to help you out.

    There is no legitimate equivalence that can be drawn between the Democrats’ failed attempt to filibuster the Alito nomination and the current GOP’s refusal to even grant a hearing to any Obama nominee. None. Zero. Zilch. Nada. Nil.

    Party Loyalty supersedes every other principle so we’ll just barf out whatever lame rationalizations we need to justify whatever we’re doing this week.

    Yes, you’ve just described with complete accuracy the Congressional Republicans’ position on Obama’s nominee.




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  33. HarvardLaw92 says:

    @Stormy Dragon:

    It’s still apples to oranges. Alito was nominated, and the effort to oppose him was based on a very tangible judicial record and a judicial philosophy he has never been shy about talking about – frankly to anyone who’ll listen. The guy is an ideologue who is diametrically opposed to most everything a Democrat would care about.

    Even then, with all of that weighed in, much of the Dem caucus in the House still refused to support a filibuster against the guy.

    Trying to compare that to “we will oppose any nominee, sight unseen, regardless of judicial philosophy or qualifications, simply because the negro in the White House nominated him/her” is disengenuous at best, and that’s being kind. Doug already tried that episode of mental gymnastics and got eviscerated for it.




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  34. SC_Birdflyte says:

    @rachel: What Obama should do is have Harry Reid introduce a “Judicial Confirmation Act” providing that, for all federal judgeships, the Senate shall convene hearings within 30 calendar days of receiving a nomination and shall vote on the nomination within 90 calendar days of said nomination. It’s time to take senatorial discretion out of the picture. Also, no holds on judicial nominations.




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  35. @SC_Birdflyte:

    The law wouldn’t be constitutional. The current congress isn’t allowed to pass laws binding the actions of future congresses. It’s the same reason why budget deals always fall apart after a year or two, the current congress can’t actually force the next congress to abide by whatever limits were negotiated.




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  36. @SC_Birdflyte:

    My solution would be an amendment eliminating dedicated supreme court justices. Every year 18 random federal appeals court justices would be selected. 9 would select appeals to be heard in following year’s term (without knowing at the time who would actually be hearing those cases) and the other 9 would hear the appeals that were selected in the previous year.




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  37. bill says:

    @stonetools:

    “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.”
    I think it was ’92! But he did say that and of course he’s saying he didn’t mean what he said…..or something idiotic or “biden-esque” – they’re very similar.




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  38. Grewgills says:

    @bill:
    At the end of the quote you and so many on the right love mining is this bit

    I believe that so long as the public continues to split its confidence between the branches, compromise is the responsible course both for the White House and for the Senate. Therefore I stand by my position, Mr. President. If the President consults and cooperates with the Senate or moderates his selections absent consultation, then his nominees may enjoy my support as did Justices Kennedy and Souter. [C-SPAN, 2/22/16]

    That makes a much different point than what you are pretending it does.




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