Rules Matter Yet Again: SCOTUS Strategizing

Dare I say: hate the game, not the players?

Supreme Court BuildingIt is sometime useful to remind ourselves that politics is a game wherein the players assess their various moves within the bounds of the established rules so as to score whatever points the players think possible.  The pertinent rules and parameters are as follows:

1)  For a Supreme Court Justice to take their seat, they must be confirmed by the Senate.

2)  There is no official clock under which the Senate must function.

3)  The ideological balance of the Court is currently in play (so the points that can be scored are high).

4)  The appointment is life with good behavior, so the stakes are potentially a seat occupied for two to three decades.

5)  Filling the current vacancy will alter the current ideological balance of the Court for decades to come (potentially).

As such, and regardless of one’s preferences (or what history and tradition may dictate), it should be no surprise that the Republicans in the Senate will seek to run out the clock on the current occupant of the White House in regards to giving him the chance at a third appointee to the Court.

Is it fair to note that conservatives allegedly favor history and tradition?  Sure it is.  Is it likewise fair to note that Republicans like to speak in grand terms about fealty to the constitution?  Of course.  Do power calculations and the long-term balance of the Supreme Court trump those things?  What do you think?

I must confess that on one level I find it problematic to claim that the next president will have more democratic legitimacy than does the person currently occupying the office.  And, ultimately, that is what Senator McConnell is asserting when he says:  “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”  After all, the current president came to office (twice) via the voice of the American people.

Having said that, there is something to be said about making the nomination into a campaign issue insofar as it will allow voters a significant say in this particular nomination (not just the chance of influencing a nomination that comes with every election).  The voters will have, more than usual, direct influence on the Court should the Republicans succeed in keeping the seat open until 2017.  That isn’t necessarily bad from a democratic theory point of view in the context of divided government.

Regardless, the power calculation is clear:  if the Republicans allow a confirmation now, they will have lost access to the vacancy but there is a chance that the next president will be a Republican, and so they are willing to roll the dice.

Still, I think it is worth noting that it is a roll of the dice insofar as the next president could not only be a Democrat (indeed, if one is objective about it, the odds are better that it will be a Democrat than a Republican—just go look at the electoral math) but, further, there is the real chance the Republicans will have less Senate seats after November (and hence, less influence over the vacancy).  As such, the safer play would be to try and leverage the current situation for a more moderate Justice in the here and now as opposed to running the risk of having to accept a more liberal one in early 2017.

To wit, the following scenario is very real possibility:  a newly elected President Clinton, with a more Democratic Senate, can assert that the people have spoken (a la Senator McConnell) and therefore feel rather unconstrained in her nomination of the next Associate Justice, which the Republicans will have a harder time blocking.

And, speaking of politics, the smart play for President Obama is to nominate someone whose rejection will help motivate pro-Democratic voter turnout.  As such, I would expect a minority appointee and, if they are smart, someone who is not overtly ideological or in some way politically objectionable.  This way the Democrats can motivate their base, appear to be the more reasonable party (they would be, after all, simply doing what the constitution dictates), and also be able to promote the narrative that the Republicans are obstructionists not serious about governing (and anti-minority to boot).

I will say, I still question the strategic wisdom of Senator McConnell coming out and saying “this vacancy should not be filled until we have a new President”—it strikes me that it would have been smarter to at least appear willing to follow the constitutional process and reject nominees by stating that they are “too liberal” or whatever argument the Senate Republicans would like to make.  To simply state, within hours of Scalia’s death no less, that we would be going likely at least a year before the Court was at full strength seems both unnecessary and a move that limits Republican maneuvering room.  If Senators Cruz or Rubio had made such a statement, that would make perfect sense (indeed, McConnell should have let Cruz be Mr. Obstruction).

The only argument that I have seen for why McConnell may have made this choice comes from Sarah Binder at The Monkey Cage:

In that sense, despite the strong polarization of the parties in recent years, there’s an outside chance that a supermajority could be cobbled to confirm a moderate Obama appointee. And that is the procedural genius of the majority leader’s rejection of the Senate’s constitutional duty to provide advice (if not consent) to fill Scalia’s seat. If there’s no vote, cross-pressured GOP senators are saved from a tough public vote and McConnell preserves the vacancy until after the electoral dust settles.

Of course, she also notes:  “If McConnell’s strategy succeeds, he’ll have created quite the new institutional tradition.”  Indeed.  In fact, this action will further reinforce the politicization of the process that has been in place since Bork (and Democrats will be looking for a chance to retaliate in some way, even if it takes years).

On one level, I very much would prefer that a sitting president at least be allowed a vote on their nominee.  Indeed, my philosophical predilection is that president’s ought to have reasonable, qualified nominees confirmed (or, at least, that they have the chance to get a nominee seated when a vacancy occurs even if it requires negotiation or multiple nominees to achieve that outcome).  Having said that, I cannot ignore that the rules of the game do not stop Senate Republicans from running out the clock, so fully expect that outcome.  In short, it is not unreasonable for a Republican majority Senate to seek to extract some level of concession from a Democratic President on a Supreme Court nomination given the constitutional parameters in play.   However, that does not appear to be what is going to happen.  We will see if the Republicans gamble pays off (I have my doubts).

A concluding point:  maybe some day we will wise up and create a specific terms (and age limits) for SCOTUS (like the rest of the world).  When the stakes are so high (i.e., the chance to appoint a 40-something for a lifetime appointment and therefore to influence outcomes for a very, very long time) it is not surprising that behaviors become extreme vis-à-vis filing the slot.  A twenty year term (with a retirement age of 75) keeps the stake high (but nowhere near as high) and would change behaviors.

FILED UNDER: *FEATURED, Campaign 2016, Law and the Courts, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. al-Ameda says:

    I must confess that on one level I find it problematic to claim that the next president will have more democratic legitimacy than does the person currently occupying the office. And, ultimately, that is what Senator McConnell is asserting when he says: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” After all, the current president came to office (twice) via the voice of the American people.

    Who can be surprised? This is where we are, where our political culture is these days.

    The Republican Party has not considered either of the last two (4 terms) Democratic presidents to be legitimate – one was subject to 6 years of investigations and ultimately impeached for nothing related to governance, while the other is still believed to be (by a majority of Republicans) not an American.

  2. C. Clavin says:

    So…if a Democrat wins the election, then the Senate could refuse to fill the slot for four years, or potentially eight.
    Good to know Republicans in the Senate have such great concern for the Judicial branch.

  3. Jack says:

    The Republicans should goad Obama to make a recess appointment. Let him put on the robes, and then…call a inter-session recess. Reconvene 10 minutes later, thus beginning a new session. The newly appointed judge’s term then comes to an end before ever sitting in on a case. Wash, rinse, repeat.

  4. KM says:

    No one is saying it’s not understandable or unreasonable that the Republicans want to prevent what they see as a disaster in the making for their ideology. I don’t begrudge them the concerns they have or the need that drives it. No one wants to suffer this kind of setback to their agenda.

    What were saying is it’s blatant BS that they’re flat out refusing to engage in childish sore loserdom. Quite frankly, to the victor go the spoils and one of the spoils of the Presidency is the SC nomination. I HIGHLY doubt any Republican would be willing to pass a law that says no SC confirmations/nominations in the last year of a Presidency for the exact logic you’ve posted: they want to be able to get a young con on the court for the next few decades. Unless they are willing to pass legislation so that ALL Presidents get screwed on this regardless of political beliefs, then they are just engaging in obstructionism and asshattery. They deserve to be called out on last-minute goal post moving and pay any price the voting public chooses to inflict on them for this chicanery.

    If both sides do it? Then legistlate so that NO sides can do it. Simple. Fair. Not going to happen. The next President should know going in what’s what and not have to worry about haters suddenly deciding a whole year in office suddenly means squat.

  5. C. Clavin says:

    Orin Hatch seems to think Obama wasn’t elected…which he was…by a fairly wide margin.

    “Well let’s give neither side an advantage. Let’s be fair to both sides and let’s wait until this election is over and then the next president whether Democrat or Republican will have a right to nominate whoever that president wants and then we’ll have the obligation to confirm or not to confirm.”

  6. KM says:

    @Jack :

    And screw up their vacations and fundraising? They’re not going to inconvenience themselves and certainly not their bank accounts. You’ll see revolts in the ranks pretty damn soon and that appointment will go through. Only a few Dems need to stay, almost all the Repubs would to keep up the needed numbers. Get somebody young who wants to make a name for themselves and be the Dem Who Pissed Off Congress All Year – keep calling for them quorums!!

    I think it’s interesting something that would totally benefit the Dems is the first thing you came up with to try and spite them…..

  7. gVOR08 says:

    the next president will have more democratic legitimacy

    Let’s be honest, given Carson’s situation, there’s no chance the next president will be Black. Which is not to say they won’t find ways to define a woman or a Jewish “socialist” as illegitimate. But the dog whistles will have to be a little more subtle.

  8. @KM:

    Quite frankly, to the victor go the spoils and one of the spoils of the Presidency is the SC nomination.

    In fairness, he can nominate. And, in fairness, the Senate is controlled by the Republicans (victors and spoils) and they have the right to not confirm.

    Regardless of what one may, or may not, want the outcome to be, I can’t get around the above facts. This is the nature of separation of powers in the context of divided government.

  9. Jack says:

    @KM:

    They’re not going to inconvenience themselves and certainly not their bank accounts.

    Travel is paid for by the people.

  10. And note: I am not reducing this to “both side do it”–rather, I am looking at the rules and the stakes and assessing behavior. It is what it is, regardless of normative preferences.

  11. Also: the real assessment of this stratagem will be known in November. In the meantime, the advantage in the Court is actually on the liberal side.

  12. @Jack:

    The Republicans should goad Obama to make a recess appointment. Let him put on the robes, and then…call a inter-session recess. Reconvene 10 minutes later, thus beginning a new session. The newly appointed judge’s term then comes to an end before ever sitting in on a case. Wash, rinse, repeat.

    This is, of course, childish. And such a position is not serious about governing.

  13. SKI says:

    One quibble:

    5) Filling the current vacancy will alter the current ideological balance of the Court for decades to come (potentially).

    All SCOTUS appointments impact the balance as they are individuals. Scalia was, for example, very protective of defendant’s rights. There is no single ideological balance of the Court, each balancing is issue-specific.

    It is consequential but, over the long term, SCOTUS appointees trail but align with broad trends in the country’s ideology. Given that the Democrat has gotten more votes in 5 of the last 6 elections (’92-’12), it is more than time enough that advantage created by the 5 of 6 in a row the GOP won from ’68-’88 is erased.

  14. Jack says:

    @Steven L. Taylor:

    This is, of course, childish. And such a position is not serious about governing.

    I’ll respond with another quote.

    Regardless of what one may, or may not, want the outcome to be, I can’t get around the above facts. This is the nature of separation of powers in the context of divided government

  15. Neil Hudelson says:

    @Jack:

    Literally nothing you wrote makes sense.

    By “goading” do you mean “outright refusing to even consider doing their duty?” If so, then the Republicans have already done that. It wouldn’t be “goading” Obama. Indeed, Obama would be acting responsibly at that point.

    and then…call a inter-session recess.

    By your own quote they are already in recess. They are going to call a recess during the recess? Do you understand what “inter-session” means? Or “recess?” You might have meant “intrasession” recess, however even then it is important to note that by your scenariothey are already in recess. (Or else Obama would have a tough time making a recess appointment.)

    Perhaps you meant they would call new session, since recess appointments generally have to be confirmed by the end of the new session?

    Ok, so your plan then is to have Republicans refuse to do their duty; once they’ve gone on recess from not doing their duty, the President places someone in the slot; Republicans then come back from recess, and refuse to confirm the appointment, vacating the position; they then return to doing nothing.

    And this will be a political “win” for them, yes? Am I following you correctly?

    The newly appointed judge’s term then comes to an end before ever sitting in on a case.

    You do understand that there is currently an ongoing session of the Supreme Court, which probably won’t end until June, right?

  16. Pch101 says:

    I still question the strategic wisdom of Senator McConnell coming out and saying “this vacancy should not be filled until we have a new President”—it strikes me that it would have been smarter to at least appear willing to follow the constitutional process and reject nominees by stating that they are “too liberal” or whatever argument the Senate Republicans would like to make.

    It’s an effort to create party unity and increase GOP voter turnout. When the primaries are over, I think that it will be obvious why this is necessary — the Republican coalition is starting to fall apart.

  17. @SKI: In the short term, this is replacing a reliable conservative vote (and, symbolically, the conservative vote). This should not be discounted.

    And, further, it will matter greatly if this slot if filled by a Rep or a Dem.

    But yes: the long term (maybe even the medium term) is a different matter).

  18. @al-Ameda: So, you are contrasting your childish notion with a straight-forward observation of the facts?

    Okay.

  19. KM says:

    @Steven L. Taylor :

    In fairness, he can nominate. And, in fairness, the Senate is controlled by the Republicans (victors and spoils) and they have the right to not confirm.

    Except that’s not what they are doing. They have the right to not confirm A specific nomination, not ALL nominations sight unseen. The separation of powers doesn’t mean that a branch can flip off another and say “You get nothing, never! Nyeh nyeh!!”

    I’d be miffed at endless delays and rebuffs via committee. I’d be annoyed by rejection after rejection. But that’s the process so I’d have to live with it. To say it’s never going to make that far, that any nomination is going straight to the garbage bin is not separation of powers but rather a power grab and a terrible precedent to set.

  20. MarkedMan says:

    Steven’s strategy analysis makes sense. But as he alluded to, and I said in a different thread, it doesn’t matter one whit what the best conservative strategy would be. Anyone on that side of the aisle who even mentions a compromise will be primaried out of existence.

  21. gVOR08 says:

    @Jack:

    The Republicans should goad Obama to make a recess appointment.

    How would they do that? Obama’s best play is to play this straight. Find a squeaky clean moderate nominee who’s willing to put up with the scheisse sturm (that’s the hard part) and let it play out. Heads he gets a Justice, tails he gets an election issue. And the Dems probably get a Justice eventually from President Clinton anyway.

    I haven’t been counting. If it plays out this way it would be what, about the 100th time out of a hundred opportunities, that they’d have thrown Br’er Barack into the briar patch?

  22. @Jack: Also: that’s not the way it works. The recess appointment does not end as soon as the Senate returns from recess. (Else there would be no point to a recess appointment). The Senate’s current session ends in December (a recess does not end a session, not does returning from recess start a new one).

  23. @Steven L. Taylor: My bad–I meant that for @Jack.

  24. Jack says:

    @Neil Hudelson: If my counting is correct, this is a 9 or 10 day recess (Feb. 12-22) and thus on the borderline of what qualifies as a recess. But, they have not called the session to an end. They would have to come back, then call another recess. The Senate or the House of Representatives announces an inter-session recess by approving a resolution stating that it will “adjourn sine die,” i.e., without specifying a date to return.

    NLRB also noted that “The Constitution thus gives the Senate wide latitude to determine whether and when to have a session, as well as how to conduct the session.

    Congress might thus be able to declare the first session at an end, begin a second session, declare that at an end, and begin a third session. The recess appointment (and any others made to date) would terminate at the end of the second session.

  25. @KM:

    Except that’s not what they are doing. They have the right to not confirm A specific nomination, not ALL nominations sight unseen. The separation of powers doesn’t mean that a branch can flip off another and say “You get nothing, never! Nyeh nyeh!!”

    Well, so far we have no nomination and a statement by McConnell. What actually transpires going forward remains to be seen. I fully expect a nomination and we will see how the Senate reacts.

    Having said that, if the majority party refuses to hold hearings, it is rejecting the nomination, just not by the normal process. Again, set aside your preferences and tell me how the GOP is obligated to hold hearings. (And note: I think they should, but that is a normative preferences–there is no legal or institutional requirement for them to do so. Whenever the constitution grants a power, one way to use that power as a tool is sometimes to refuse to wield it).

  26. Joe says:

    I have read few posts that I more agree with in every respect. I hope the Republicans are forced to pay for the bald ridiculousness of McConnell’s pretense – that somehow the next President will be more democratically elected than the current one. Perhaps they will. Perhaps they won’t. Voters have forgotten more ridiculous behavior than this.

    Currently, advantage Democrats. Time will tell where that goes.

  27. C. Clavin says:

    @Jack:
    Stop digging.

  28. Jack says:

    @C. Clavin: If I wanted your opinion I would beat it out of you.

  29. Pch101 says:

    @Steven L. Taylor:

    Again, set aside your preferences and tell me how the GOP is obligated to hold hearings.

    Article 2 Section 2 says that the president SHALL nominate judges and the Senate will advise and consent.

    Article 3 makes having a Supreme Court a requirement. It isn’t possible to have one if a president never nominates justices and/or the Senate never bothers to consider them. It’s isn’t hard to connect the dots between Article 2 and Article 3.

    There are no alternatives for choosing judges if the president or senate don’t feel like showing up to work.

    The word “shall” isn’t exactly ambiguous. In every other constitutional context, we interpret “shall” as meaning, well, shall, i.e. it’s a requirement, not an option.

    I would go further — if Obama refused to nominate anyone, he would probably be violating Article 2 Section 2 due to his unwillingness to fulfill a basic job responsibility. He can mull it over and stall, but he can’t just blow it off.

    We can debate the timeframes and the Senate’s latitude in advise and consent, but the job requirement is clear.

  30. reid says:

    @Jack: So, the answer to acting like a spoiled child is to escalate the antics, not start acting like a responsible adult?

  31. Jack says:

    @Pch101:

    The word “shall” isn’t exactly ambiguous. In every other constitutional context, we interpret “shall” as meaning, well, shall, i.e. it’s a requirement, not an option.

    Except in the 2nd amendment. Then it seems liberals believe the phrase shall not is superfluous.

  32. Jack says:

    @reid: Did I ask you your opinion? Clavy and I go way back and your interceding on his behalf while valiant, is unnecessary.

  33. @Jack:

    If I wanted your opinion I would beat it out of you.

    Classy.

  34. OzarkHillbilly says:

    Is it OK to hate both the players and the game? Cause that’s where I’m at.

  35. reid says:

    @Jack: The comment I replied to didn’t appear to have anything to do with Clavy. I do understand that it’s pointless to respond, though.

  36. @Jack:

    Did I ask you your opinion? Clavy and I go way back and your interceding on his behalf while valiant, is unnecessary.

    It is an open discussion forum. If you don’t want people to comment on your views, then the only option you have is to not participate.

    Indeed, yes, by commenting here you are inviting others to offer their opinions on your comments.

  37. Pch101 says:

    @Jack:

    You really ought to avoid interpreting these things. You’re just not any good at it.

  38. Jack says:

    @Steven L. Taylor:

    Classy.

    If you were around more often, you could witness the vitriol slung at me by regulars here at OTB. Clavy often likes to talk about my penis during 2nd amendment discussions.

    So please, spare me the manners lesson.

  39. @Pch101:

    We can debate the timeframes and the Senate’s latitude in advise and consent, but the job requirement is clear.

    Like it or not, there is no constitutional requirement for the Senate to act in a specific time frame. There is likewise not constitutional requirement for 9 Justices.

  40. C. Clavin says:

    @Jack:
    ask the administrators for my address and then you can come try, pussy boy.

  41. Jack says:

    @Pch101: It’s not an interpretation. It’s how it works.

  42. Jack says:

    @C. Clavin: @Steven L. Taylor:

    ask the administrators for my address and then you can come try, you pussy.

    There you have it Steven. Please, forward an address so I can kick his dog humping, child molesting ass.

  43. Mikey says:

    @Neil Hudelson:

    You do understand that there is currently an ongoing session of the Supreme Court, which probably won’t end until June, right?

    Also, a refusal by the Republicans to even consider a nominee until after the election–which basically means no nominee until after the end of January 2017–will mean nearly two full SCOTUS sessions minus one Justice.

    The Republicans are basically pushing to cripple the High Court for more than a year, spanning two separate sessions. It’s abominable.

  44. @C. Clavin:

    ask the administrators for my address and then you can come try, pussy boy.

    ..

    Also quite classy–way to take the high road.

    If you two insist on acting like a couple of teenage boys, could you please go to another thread?

  45. @Mikey:

    The Republicans are basically pushing to cripple the High Court for more than a year, spanning two separate sessions. It’s abominable.

    Well, I am not sure that “cripple” is correct as the Court can, and has, function with 8 members.

    And, again, the advantage at the moment is towards the liberal side, not the conservative side with the current vacancy.

  46. Pch101 says:

    @Jack:

    Yesterday, you cited Cruikshank while failing to understand that it makes the opposite argument that you think that it does. You just aren’t very bright, and nobody on the internet can fix that for you.

    Your misinterpretation of the Second Amendment is not with the word “shall”, but with the “right of the people to keep and bear Arms,” which is a reference to serving in the militia. Until 2008, this was the interpretation of the court, and it is only thanks to revisionists-in-denial that it currently is not.

  47. @Jack and @C. Clavin: Seriously, enough. I feel like I am dealing with my kids.

  48. @Jack and @C. Clavin: Seriously, enough. I feel like I am dealing with my kids.

  49. Jack says:

    @Mikey:

    The Republicans are basically pushing to cripple the High Court for more than a year, spanning two separate sessions. It’s abominable.

    The longest vacancy on the Supreme Court was 27 months between the Tyler and Polk administrations before the Civil War. The longest vacancy since the court went to nine justices in 1869 was 391 days.

    Not quite abominable as you would think.

  50. ptfe says:

    @Steven L. Taylor: Apologize to your children, dude. I doubt they deserve that brutal an insult.

  51. Pch101 says:

    @Steven L. Taylor:

    Like it or not, there is no constitutional requirement for the Senate to act in a specific time frame.

    The Republicans are saying that they will refuse to participate in the advise and consent process for a year. They are also arguing that the president doesn’t have the authority to choose a nominee, when it’s pretty clear that he not only can name a nominee but that he’s pretty much obliged to eventually name one.

    If Obama said that he was taking a one-year vacation from being commander-in-chief, do you honestly think that this would be constitutional?

  52. OzarkHillbilly says:

    @Jack: BWAHAHAHAHAHAHAHAHAHAHA…. gasp wheeze… HAHAHAHAHAHAHAHAHAHASHAHAHAHAHAHAHAHAHAHA….

    C’mon Jack, flex those internet muscles some more. They are absolutely terrifying.

    BWAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA….

    Sometimes I just crack me up.

  53. C. Clavin says:

    @Jack:

    Comment deleted by moderator

    Either discuss the topic at hand or leave the thread. If you want to play dumb games go start your own blog.

    -SLT

  54. Mikey says:

    @Steven L. Taylor:

    Well, I am not sure that “cripple” is correct as the Court can, and has, function with 8 members.

    Well, OK…perhaps “cripple” is too strong. However, having an even number of Justices could seriously hamper the High Court’s ability to issue definitive rulings on important Constitutional questions.

  55. @Pch101: Here’s the thing, the only way to establish that the Senate is behaving “unconstitutionally” would be for the President to take the Senate to Court to force a vote. This strikes me as an unlikely course of action for a variety of reasons.

  56. OzarkHillbilly says:

    @Pch101: Still, as Steven argues, this is politics and the rules as they now exist allow it.

  57. Mikey says:

    @Jack: Let’s look at something more recent than antebellum America, shall we? Seriously.

    I didn’t vote for Obama in either of his elections, but he’s the President and he’s entitled to have his nominee at least considered. I don’t push for a rubber-stamp by the Senate, but they also have a Constitutional duty and at this point the Senate’s GOP leadership is basically saying straight up they are going to shirk it.

  58. Jonathan says:

    @Steven L. Taylor: I asked Doug this, and I will ask you as well:

    Let’s say all the Supreme Court justices die tomorrow. Is it your opinion that the Senate could just choose not to vote on any new justices?There is no requirement to vote and thus no requirement to appoint any new justices, but there is a requirement for the court to exist. How do you reconcile?

  59. KM says:

    Having said that, if the majority party refuses to hold hearings, it is rejecting the nomination, just not by the normal process. Again, set aside your preferences and tell me how the GOP is obligated to hold hearings. (And note: I think they should, but that is a normative preferences–there is no legal or institutional requirement for them to do so. Whenever the constitution grants a power, one way to use that power as a tool is sometimes to refuse to wield it).

    If they refuse to hold hearings, I would expect to at least see a formal No in writing. Flip it on its head: silence can be taken for consent. After all, if they didn’t say No, it could easily be interpreted as Yes by Silent Unanimous Consent. What legal constrictions are in place to prevent Obama or any Dem in Congress from declaring just that? After all, if we are tossing norms and just going by the Constitution, “approval” is not required. In fact, it doesn’t say who specifically grants advice so it could be a lone Dem for all we know. Refusal to give advice can be painted as the need to not have advice in this situation…..

  60. OzarkHillbilly says:

    @Steven L. Taylor:Heh. I foresee a 4-4 split.

  61. Jack says:

    @Pch101:

    Until 2008, this was the interpretation of the court, and it is only thanks to revisionists-in-denial that it currently is not.

    This was not an interpretation by the court. The only interpretation prior to Heller was the Miller decision in which the court erroneously decided the “double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230″ was never used in any militia organization.”

    Cruikshank specifically said “The right there specified is that of “bearing arms for a lawful purpose.” This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress.” And yet, congress infringes on that right all the time. Much like the 1st, 4th, 5th, and 6th amendments, SCOTUS said in Heller the 14th applies and states may not infringe.

    Nowhere in Cruikshank does it mention serving in a militia. Pull up the decision and find a single reference to “militia”.

    Nowhere else in the Bill of Rights does anyone suggest that “The People” are anything other than all of “The People” but only members of the militia. As Heller stated

    None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.

  62. David M says:

    @Steven L. Taylor:

    Like it or not, there is no constitutional requirement for the Senate to act in a specific time frame. There is likewise not constitutional requirement for 9 Justices.

    And, again, the advantage at the moment is towards the liberal side, not the conservative side with the current vacancy.

    That’s veering awfully close to advocating that if the Democrats take the Senate in 2017, they similarly refuse to confirm nominees from a Republican President.

  63. Pch101 says:

    @Steven L. Taylor:

    I agree that as a practical matter that Obama has little recourse beyond the bully pulpit. But that has nothing to do with the unconstitutional position being taken by the Republicans.

    Imagine if Obama said that he was going to cancel the elections and wasn’t going to leave office because the term provided by Article 2 Section 1 [“(The president) shall hold his Office during the Term of four Years”] didn’t mean anything. You can bet that the Republicans would have no trouble whatsoever understanding what “shall” means.

  64. @Jonathan:

    Let’s say all the Supreme Court justices die tomorrow. Is it your opinion that the Senate could just choose not to vote on any new justices?There is no requirement to vote and thus no requirement to appoint any new justices, but there is a requirement for the court to exist. How do you reconcile?

    I think that the key there is that there is a difference between an eight member Court and no Court at all. There would be a very different kind of political pressure if we lost the whole Court at once (and, indeed, if that happened, there would probably have to be some kind of negotiation to replace the Court in a way that did not favor one party only–that would be a pretty dramatic situation in a lot of ways).

    I think you can use constitutional language to require that there be a Court in the absence of one, but there is no way to force action on a single seat. It simply isn’t the same thing.

  65. Moosebreath says:

    @Mikey:

    ” he’s the President and he’s entitled to have his nominee at least considered. I don’t push for a rubber-stamp by the Senate, but they also have a Constitutional duty and at this point the Senate’s GOP leadership is basically saying straight up they are going to shirk it.”

    Yep. For all the Republicans like to point to the Bork hearings as a maximal outrage, what they are doing is several steps beyond that. A good comparison is here:

    “Now, whatever you think of Robert Bork, it’s clear that the Senate considered him. They asked Reagan not to nominate him, but Reagan was spoiling for a fight. They didn’t respond by refusing to give him a hearing. In fact, even though the Judiciary Committee rejected his nomination, they still allowed a full debate and a vote by the whole Senate.

    It wasn’t necessary to stop his confirmation, but there was no filibuster.

    And the vote was bipartisan. It wasn’t just liberal Democrats who found Bork beyond the pale. It was also six Republicans, including John Warner who would later serve as part of the Gang of 14 that dissuaded the Bush administration from using the nuclear option.”

  66. Pch101 says:

    @Jack:

    You didn’t get Cruikshank at all. I’m pretty sure that you never will. You just aren’t very bright.

    Cruikshank dealt with the issue of incorporation. Go figure out what that means, if you can.

  67. @Pch101:

    Imagine if Obama said that he was going to cancel the elections and wasn’t going to leave office because the term provided by Article 2 Section 1 [“(The president) shall hold his Office during the Term of four Years”] didn’t mean anything. You can bet that the Republicans would have no trouble whatsoever understanding what “shall” means.

    Except, of course, that is not the same kind of thing and is also trying really hard to make poor “shall” do a lot of work.

    There is a profound difference between delay (and it is going to be a delay) in filling a SCOTUS seat and a president overstaying the term of office.

  68. @Jack: This thread is not about gun policy.

  69. Tyrell says:

    You can’t predict how some of these judge selections will turn out. Sometimes people are surprised. Look at Judge Roberts. He was supposed to be this big Constitution conservative, but turned around and made the American people subservient to the big health insurance conglomerates.* Talk about being between a rock and a hard place. In this case the people are between the IRS and the government health care company. I think I would rather be between Iran and ISIS !
    And that Judge Warren – he was supposed to be a big conservative too and some people still talk about his disastrous school decision.
    * That was in that infamous “changed his mind in mid decision” ruling a couple of years ago. The most bizarre Supreme Court ruling in history.

  70. Pch101 says:

    @OzarkHillbilly:

    There is no rule. We have to rely upon scholarly interpretations of advise and consent, since there isn’t any case law that is on point, but those discussions have always dealt with degree, not with the idea of the Senate going on strike.

    This is taking petulance to a whole new level. If the Republicans don’t like a nominee, then let them have the cajones to put their names on the lines and explain why they rejected him or her.

    In any case, this really isn’t about the Supreme Court at all, but about the election. The GOP wants to do this to increase turnout.

  71. @Pch101:

    This is taking petulance to a whole new level. If the Republicans don’t like a nominee, then let them have the cajones to put their names on the lines and explain why they rejected him or her.

    In any case, this really isn’t about the Supreme Court at all, but about the election. The GOP wants to do this to increase turnout.

    On these points we agree (although over the long haul it is very much also about the Court).

    But, as noted in my post, the Democrats have the chance to use this situation to their turn-out advantage as well.

  72. Pch101 says:

    @Steven L. Taylor:

    Except, of course, that is not the same kind of thing and is also trying really hard to make poor “shall” do a lot of work.

    It is the same thing. The founders went through a lot of drama to develop a structure of government and who would do what. We have an independent judiciary whose judges are selected by the president and the senate. The president and senate are free to gridlock on the issue, but they aren’t free to just ignore it.

  73. Jack says:

    @Steven L. Taylor:

    This thread is not about gun policy.

    And yet, I only brought it up as an example in response Psych suggesting that shall, means shall! It only means shall when democrats say it means shall.

    If you are suggesting I shouldn’t point out hypocrisy when I see it, that is another issue completely.

  74. @Pch101:

    . The president and senate are free to gridlock on the issue, but they aren’t free to just ignore it.

    The Senate not acting is in their prerogative whether you like it or not.

    Further, in terms of outcomes there is no difference between not holding the vote and voting a nominee down in terms of the constitutional powers of the offices in question.

  75. SKI says:

    @Steven L. Taylor:

    There is a profound difference between delay (and it is going to be a delay) in filling a SCOTUS seat and a president overstaying the term of office.

    Actually, Supreme Court precedent exists on the concept of delay equating to denial and whether courts should issue Writs of Mandamus to compel action.

    Your position that there is a legal difference in refusing to even consider the 9th Justice vs. considering the 1st or 5th isn’t legally tenable. The law doesn’t work that way. Either the Senate has a Constitutional duty to consider the President’s nomination or they don’t. The Constitution makes clear that they do. And at this point, the Senate Republicans can’t claim they are “just taking their time based on their public statements. They have admitted that they are refusing to act.

    That being said, I’m not sure there is a remedy. It strikes me that the Judiciary declines to get involved in the inherently political dispute. That doesn’t change the fact that you are wrong, Steven, but the result is the same. 🙂

  76. OzarkHillbilly says:

    @Pch101:

    There is no rule.

    Remember the knife fight in Butch Cassidy and SD Kid?
    “Rules? There are no rules in a knife fight!”

    Those are the rules we are playing by.

    This is taking petulance to a whole new level.

    Absolutely. Surely this does not surprise you coming from today’s GOP?

    If the Republicans don’t like a nominee, then let them have the cajones to put their names on the lines and explain why they rejected him or her.

    Do you really expect the Republican’s in the Senate to act with courage? Really? They are scared to death of their own base. That’s how we got in this situation to begin with.

    In any case, this really isn’t about the Supreme Court at all, but about the election. The GOP wants to do this to increase turnout.

    That’s exactly what this is about. “We defied the EVIL TYRANNICAL OBAMA!!!” And that’s just politics. It’s also a gamble. You see, I too am hopeful that it will increase turnout, just not in a way that is helpful to them.

  77. Pch101 says:

    @Steven L. Taylor:

    Further, in terms of outcomes there is no difference between not holding the vote and voting a nominee down in terms of the constitutional powers of the offices in question.

    Process matters. We are allegedly a nation of laws, not just outcomes.

    The Constitution is pretty clear that there is a process of choosing judges. There is only one process, and having a judiciary is not an option.

    In essence, this is an act of mutiny.

  78. @SKI:

    That doesn’t change the fact that you are wrong, Steven, but the result is the same. 🙂

    Except if things play out as I have described, I am not sure how that makes me wrong.

    Your position that there is a legal difference in refusing to even consider the 9th Justice vs. considering the 1st or 5th isn’t legally tenable.

    The only way to test that proposition would be in the courts. This is not going to happen. (And even history shows there have been long vacancies on the Court).

    I’m not sure there is a remedy.

    Welcome to politics–indeed, that is my whole point: the nature of this conflict is profoundly political.

    Back to the assertion that I am wrong: how? I am arguing from the parameters that clearly exist and that will shape the parameters for behaviors going forward.

    The proof (so to speak) of our differing interpretations will not in the abstract, but in the concrete way this plays out.

  79. I would further note, when assessing what the Senate has to do in regards to this process is not laid down in the constitution. There is no constitutional guarantee of a vote.

    Again: my preference is that there should be a vote. But the issue in terms of understanding what is happening and why is not about what I want.

  80. Joe says:

    @Pch101: I wonder what the framers of the Constitution thought the Senate should do here? Or is the only one who ever pretended to care about that now dead?

    I agree with Steven again insofar as there is no place to adjudicate whether the Senate is proposing to act “Unconstitutionally” by refusing to give even advice, let alone consent. Even if Obama took the Senate to court, the court would almost certainly refuse to adjudicate it because it is a “political question,” which is a technical way for courts to say that they should not be breaking difficult ties between the other two branches of government.

    Still, the Republicans’ claim to honor Scalia by acting in a way that would almost certainly have shocked the original Senate, populated largely by the men who were instrumental in ratifying the Constitution, is unusual hypocritical even for them.

  81. Jack says:

    @Pch101: @Pch101:

    Process matters. We are allegedly a nation of laws, not just outcomes.

    Section 7 of the Constitution states:

    All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

    I guess according to your interpretation, because it’s a fact that the ACA originated in the Senate, it’s no longer law.

  82. @Pch101:

    Process matters. We are allegedly a nation of laws, not just outcomes.

    And where in the law does it dictate that the Senate has to vote on a nominee in a specific amount of time.

    You are arguing from preferences.

  83. MikeSJ says:

    What if McConnell is still Majority Leader with a President Hillary and just refuses to consider any nominations? If he won’t do it for Obama, why should he do it for Clinton?

    It’s not outside the realm of possibility that we’d see one, perhaps two more vacancies (the Justices aren’t spring chickens if you know what I mean) and McConnell refusing to allow even a vote for new judges.

    Why not? It’d help fund raising for the Republicans against Hillary and McConnell and crew don’t give a hoot about normative governance.

    I just don’t see any downside for them if they take this step. And by downside I mean tea party primaries, fund raising impacts and future fox news gigs.

  84. SKI says:

    @Steven L. Taylor:

    Back to the assertion that I am wrong: how? I am arguing from the parameters that clearly exist and that will shape the parameters for behaviors going forward.

    There is a difference between the Senate refusing to consider a nominee at all being legal (your position) and it being illegal but not resolvable except through politics.

    How this is characterized will have a profound impact on how quick it gets resolved.

    It is a violation of their Constitutional duty to consider nominees to refuse to do so. That doesn’t change the reality that they can do it – the same way that it doesn’t change reality that drug lords in Columbia kill people with impunity despite it being illegal.

    .

  85. al-Ameda says:

    @Steven L. Taylor:

    @al-Ameda: So, you are contrasting your childish notion with a straight-forward observation of the facts?
    Okay.

    Excuse me Steven, I’ve got to ask, exactly what about my observation (as follows)

    Who can be surprised? This is where we are, where our political culture is these days.

    The Republican Party has not considered either of the last two (4 terms) Democratic presidents to be legitimate – one was subject to 6 years of investigations and ultimately impeached for nothing related to governance, while the other is still believed to be (by a majority of Republicans) not an American.

    constitutes a “childish notion.’?

  86. OzarkHillbilly says:

    @MikeSJ:

    I just don’t see any downside for them if they take this step.

    There is, maybe not much of one but it is there. There is no way to gerrymander a Senate seat, which means that Senators have to worry about more than just getting primaried.

    Example: Todd Akin

    It is hard for me to believe but there is a limit to how far to the right the Missouri electorate will go.

  87. Pch101 says:

    @Steven L. Taylor:

    The issue isn’t with timeframes but with the absolute refusal to participate in the advise and consent process that is mandated by Article 2. The GOP has gone on strike.

    Stalling and voting nay are perfectly legal, but abdicating altogether is unconstitutional, just as Obama can’t just blow off being commander-in-chief for the rest of his term because it bums him out (like totally.)

  88. OzarkHillbilly says:

    @al-Ameda: That was a reply to Jack, Steven apologized a few comments later.

  89. @al-Ameda: Yep, as @OzarkHillbilly notes, I made an error somehow clicking on the wrong “Reply”–sorry about that.

  90. Jonathan says:

    @Steven L. Taylor: So they could confirm just one justice, correct. Would there be a time limit to approve that one judge? Is the Judiciary Act of 1869 still the law of the land as it relates to the number of justices?

  91. @SKI: The very definition of “illegal” is “against the law”–the problem with your position is showing what law is being violated.

  92. To pretty much everyone: let me state that what I am trying to demonstrate is the political reality of the way these things work, especially in the context of ideologically sorted parties in a system of separated powers.

    Note that my personal preference is for the President to be able to nominate, and even seat, a Justice before the end of this calendar year. I think that that would be an appropriate outcome.

    However, that preference does not matter. Nor does it matter if you want to call the GOP’s actions “illegal,” “unconstitutional,” and/or “childish.” None of that matters because what I have described in the post is not going to be stopped unless the GOP decides it is to their political advantage to behave otherwise.

    Again: separation of powers and polarized parties often means deadlock.

    And deadlock is deadlock whether the Senate votes or doesn’t vote if, in fact, there are 51 Republicans willing to vote “no” (and does anyone doubt that this is the case at the moment?).

  93. Pch101 says:

    @Joe:

    I’m pretty sure that the founders expected the president to name some choices and for the senate to mull them over. They debated it, so we have some idea of what they were thinking and what other options they considered.

  94. KM says:

    @MikeSJ :

    It’s not outside the realm of possibility that we’d see one, perhaps two more vacancies (the Justices aren’t spring chickens if you know what I mean) and McConnell refusing to allow even a vote for new judges.

    Again, what’s to stop Obama from declaring a lack of hearings as Congressional approval? Is there actually a law that says a vote is required or is that a “norm”? Can he have the Senate Minority Leader draft an official declaration that since their august body has not chosen to convene for hearings, the nominee is deemed adequate?

    Seriously, is there anything stopping this other then political fallout? I’m really curious to see a lawyer’s take…..

  95. Jenos Idanian says:

    @al-Ameda: Oh, quit your whining. Bush 43 was considered illegitimate by the left — but that’s different, isn’t it?

    In all three cases, the “illegitimate” BS was just whining. No one took actual steps to remove the president in question — except when Bill Clinton lied under oath about his conduct in the Oval Office with a subordinate.

    I’ll go on record here and say that should a Republican win the election this November, there will be arguments and whines about how that president is “illegitimate,” too. And it will be as substantive as the whines about Clinton never winning a majority, or Bush and Florida, or Obama and his place of birth.

    I’m sure the screeds are already written, with appropriate blanks to be filled in as needed.

    That being said, the GOP (mainly Mitch McConnell, who is a total jerkwad) made a major blunder by saying that Obama’s nominee wouldn’t get a vote. They should have said that his nominee will get the scrutiny they deserve, but he should take into account that the Senate has both the right and duty to give their approval, and he should gauge his choice with that in mind.

    That would have been the principled approach, at least.

  96. Pch101 says:

    @Steven L. Taylor:

    Nor does it matter if you want to call the GOP’s actions “illegal,” “unconstitutional,” and/or “childish.” None of that matters

    Well, you previously asked, “set aside your preferences and tell me how the GOP is obligated to hold hearings.” The answer should be clear: Because Article 2 Section 2 specifically compels the Senate to participate in the selection of Supreme Court judges. As it is specifically a constitutional matter and the GOP is refusing to follow Article 2, that would make it unconstitutional.

    In terms of practicalities, I would be advising the GOP to follow this course of action if I was a Republican consultant and felt no twinges of guilt over violating Article 2. This will probably help them in November, and they’re probably going to need the help. That doesn’t make it legal, that just makes them cynics.

  97. @Pch101: A major problem with your position is that the constitution does not require hearing. Indeed, the constitution does not tell us what “advice and consent” means.

    A major problem with your argument is that you are conflating what the document actually says with established norms and practices.

  98. Pch101 says:

    @Steven L. Taylor:

    I’m not conflating anything. I simply noting that we interpret SHALL as being a requirement when it appears elsewhere in the Constitution.

    Four-year presidential terms, the role of commander in chief and other SHALLs in the Constitution are understood to be requirements. This stuff isn’t debated because it’s obvious and unambiguous.

    The only reason that this advise and consent thing has suddenly become a bizarro political football is because the GOP is on its continued rampage to deny the legitimacy of presidents from the opposing party. There is no sound constitutional argument in their favor, and one has to be a politically motivated contortionist to find one.

  99. Scott says:

    I wonder if the third branch of government should weigh in on this discussion (perhaps the Chief Justice)? Would it be appropriate for any opinions from that sector in this political battle? Would it be wise?

  100. @Pch101: I know you hate to concede anything in these discussion, but it is impossible to read the constitution and then conclude that a specific procedure is required for the way the Senate engages in “advice and consent.”

    All we know for sure from the constitution is the President nominates and the Senate had to approve or reject. How it does that process is in the Senate’s hands, constitutionally speaking.

  101. Jenos Idanian says:

    @Pch101: The exact wording of the Constitution does not obligate the Senate to give a hearing to a nominee. From Article II, Section 2:

    he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court…

    And even if there was some nebulous obligation, where is the enforcement provision for a refusal? You can’t impeach members of Congress — only Congress itself can do that. The Supreme Court wouldn’t likely get involved, as it is based both on an exclusive power of Congress and a potential conflict of interest for the Justices. And it’s not a crime, so the president can’t have them arrested — and even that would run up against Article I, Section 6 — “They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

    That said, they should give the hearing, but it’s my reading that they could refuse without any legal consequences.

  102. Pch101 says:

    @Steven L. Taylor:

    it is impossible to read the constitution and then conclude that a specific procedure is required for the way the Senate engages in “advice and consent.”

    But we’re not debating the manner in which the Senate engages. They are refusing to engage.

  103. MikeSJ says:

    @Steven L. Taylor:

    A major problem with your position is that the constitution does not require hearing. Indeed, the constitution does not tell us what “advice and consent” means.

    I’d love to see Obama say that the lack of hearings is a tacit approval of my nomination. Obama can rightly say if there’s no vote against his person, well then that counts as a “silent” consent.

    If you are going to toss the norms out the window lets start with some new ones then. No hearings? No problem. My guy just shows up to work with his robes pressed, his employee badge and lunch all set to go.

  104. SKI says:

    @Steven L. Taylor: You prefer violation of Constitutional duty to illegal?

  105. SKI says:

    @Jenos Idanian:

    That said, they should give the hearing, but it’s my reading that they could refuse without any legal consequences.

    I agree with this – but that doesn’t make their refusal to carry out mandated duties magically not a violation of their Constitutional obligations.

  106. MarkedMan says:

    If a Dem wins the presidency and if they take back the Senate, and if the Repubs stonewall., then – the Senate Majority Leader should revoke the judicial filibuster rules. In that way we could get a real progressive on the court. The Repubs can stonewall but the revenge should come quickly and not a couple of decades from now.

  107. SKI says:

    @Steven L. Taylor: Right but, to remain compliant with the Constitution, it must actually approve or reject, no?

  108. C. Clavin says:

    Does anyone, for even a fraction of a second, think President Trump wouldn’t appoint?
    And by all indications on record, Democrats would give the nominee a hearing and vote.
    Republicans are simply concerned that they are losing a particularly effective extremist and activist Justice which will weaken their crusades against freedom; eg freedom to marry who you chose, freedom of choice, freedom of religion. Scalia was against all these freedoms. Republicans don’t want to suffer a set-back in their fight against freedom. It’s understandable. But their telegraphed actions are reprehensible, based upon the traditions and norms of the Senate. We all know that hypocrisy is not a new area of endeavor for Republicans.

  109. jd says:

    The Merriam-Webster definition of ‘lame duck’ is “an elected official or group continuing to hold political office during the period between the election and the inauguration of a successor.” President Obama will not be a lame duck until November.
    Isn’t the effect of poultry locomotor dysfunction really upon the quid pro quo political relationship? “Why should I do this for you if you won’t be around to do that for me?” SC appointments are a constitutional duty.

  110. @SKI: The institution of the Senate is imbued by the constitution with the power to decide whether or not a presidential nomination goes forward. Practice has determined that the the Senate is controlled (more of less–the definition of “control” in the Senate is complicated) by the majority party. How that controlling party wishes to behave with this power is not described in the constitution. If that party chooses to not schedule a vote on a nominee that is, in terms of outcome, no different than putting the nominee to a vote and having the majority vote no.

    As such, I can see no argument that states that a unified majority party is constitutionally compelled to hold a vote if, in fact, it holds the constitutional power to say no. How it chooses to say “no” is constrained, therefore, not by legality but by politics (i.e., what they can get away with). The intervening election will then further dictate what political parameters exists vis-a-vis the Senate’s behavior (or, even, which party controls the chamber).

  111. KM says:

    @Steven L. Taylor:

    How it chooses to say “no” is constrained, therefore, not by legality but by politics (i.e., what they can get away with).

    Steven, you’re missing a logical collary to this argument: If you can’t compel Congress to act, then you can’t compel the President’s acceptance of their inaction. Awesome! Obama should send Sri to work and declare him an uncontested judge. Congress will then HAVE to respond – either to say they don’t approve, that’s illegal or send security. If they don’t, then guess what: it’s de facto acceptance and there’s your new judge.

  112. al-Ameda says:

    @Jenos Idanian:

    @al-Ameda: Oh, quit your whining. Bush 43 was considered illegitimate by the left — but that’s different, isn’t it?

    He (Bush) was considered illegitimate by a majority of the Democratic Party for all 8 years of his presidency? Also, he was investigated for 6 years and impeached for no reason related to policy or governance? And he was able to accomplish nothing because the Democratic Party obstructed all of his initiatives?

    Sorry, I guess I missed all of that.

  113. @KM: Well, no. For one: is it clear that members of the Court have to be approved by the Senate. So sending a Justice to the bench and bypassing the Senate is direct violation of the constitution.

    The Senate not acting is de facto rejection, which they have the right to do.

  114. Scott says:

    I’d love to see Obama say that the lack of hearings is a tacit approval of my nomination. Obama can rightly say if there’s no vote against his person, well then that counts as a “silent” consent.

    That, at least, is a traditional bureaucratic ploy. In sending around documents for concurrence, you put in “no response = concurrence” and move on. I like it.

  115. reid says:

    Senate Republicans apparently can’t be trusted with vague but well-understood rules, so I guess we need a constitutional amendment to say that the Senate will review and vote on all judicial nominees within x number of weeks or assent is assumed. This sort of “gotcha on a technicality!” interpretation of things is about as equally mature when an 8 year old does it to get out of doing homework.

  116. Jack says:

    @C. Clavin:

    Scalia was against all these freedoms.

    Scalia was not against freedom, he simply said the Constitution is silent on these matters and therefore states get to decide…with the exception of freedom of religion which Scalia was a staunch supporter. You know, because it’s right there in the 1st amendment. Liberals on the other hand want to create rights out of thin air…The right to a college education, the right to health care, the right to a job, the right to taxpayer subsidy to support your lackluster music/painting/interpretive dance career, .

    Scalia believed you have whatever freedom you want as long as someone else was not forced to support it.

  117. Mikey says:

    A perspective I am picking up from reading this thread but which doesn’t appear to have been explicitly stated: the two “sides” seem to be disagreeing on whether the process for nominating and appointing a SCOTUS Justice is a single process with two separate but inseparable parts, or two separate but related processes with a common objective.

    It seems to me if it’s the former, the Senate GOP doesn’t have a leg to stand on–the Constitution imposes a duty on the President to appoint judges, and therefore it imposes a simultaneous obligation on the Senate to consider the prospective judge. If, however, it’s the latter, the Senate could choose not to act at all, since the President’s action does not impose any obligation on them. Their process, although related, is entirely separate. (I realize my assertion assumes this also means “optional,” but it may not. However, for the sake of discussion…)

  118. HarvardLaw92 says:

    @Jack:

    Recess appointments last until the end of the current Congress, genius.

    In other words, January 2nd, 2016.

  119. KM says:

    @Steven L. Taylor:
    Ah, the Senate can ” Advice and Consent”. “Approve” does not appear – you take “Consent” to mean Approve since that’s what the norm’s been. Again, unless it’s specifically spelled out in law (which has been brought up that there is none), silence can be taken for Consent. If we’re tossing norms, it’s all on the table. Nowhere does it say they must “Approve”. Please cite where “Consent” = “Approve”

    You read inaction as rejection. I read inaction as tacit approval. Since there is legal precedence for tacit approval, it’s incumbent on the detractors to show show Senate inaction is Rejection. As this is unprecedented, they might have some problems here. Given the public statements of intent to not hold a vote, there’s is written and video evidence of Senators choosing to be silent. In terms of strict originalism, we are to adhere to the intent of the Founders and the Founders clearly intend for a process to take place, not the absence of one. There’s nothing that says it’s automatically a No until Congress says Yes. It doesn’t say it’s tentative; these are all norms and legal practices that followed, nothing explicitly stated.

    In other words, it’s not a violation of the Constitution on the Presidents part because he’s done his job. He nominated and it’s legal. Not his fault the Senate couldn’t be bothered to specify their No and went all passive-aggressive about it. And if it goes to Court, it may not turn out like the Senate wants – many Courts don’t like having their authority and legitimacy challenged so the decisions that action must be taken is a very good possibility.

  120. Jack says:

    @HarvardLaw92:

    Recess appointments last until the end of the current Congress, genius.

    In other words, January 2nd, 2016.

    Unless Congress decides to end the current session and then start a new one. Again, Congress makes their own rules for how Congress runs, genius.

  121. @KM: If the Senate Majority Leader publicly states that the Majority is not going to act on a nomination, that is hardly silence.

  122. @Jack:

    Unless Congress decides to end the current session and then start a new one. Again, Congress makes their own rules for how Congress runs, genius.

    That’s not how it works. Words do mean things and “session” has a specific and established meaning in this context.

  123. Pch101 says:

    @KM:

    I think that the founders would have regarded inaction = rejection, given the history.

    That being said, completely refusing to engage in the process at all for an extended period based upon the premise that the president should not select a nominee goes way over the line.

    There are procedural methods for stalling and avoiding hearings, but the GOP is effectively arguing that Obama doesn’t have any power under Article 2 Section 2, which it can’t do. It would be annoying if the Senate just voted to table discussion about every nominee, but that would most likely be constitutional.

  124. HarvardLaw92 says:

    @Jack:

    It doesn’t work that way. The constitution specifies that sessions of Congress must begin on January 3rd, unless the date is changed by virtue of law. Once Congress votes to adjourn sine die, they are in recess until the following January 3rd.

    At which point Obama gains carte blanche access to nominate a recess appointment at his convenience.

    In order for them to change that date, they have to pass a law which has to be signed into authority by the president. Guess who will be vetoing any such law presented?

    As I have suggested before, do yourself a favor and stop trying to be a lawyer. The internet nimrods you’re busily mining in an attempt to make an argument don’t know any more about the law than you do – which is to say nothing.

  125. Jack says:

    @Steven L. Taylor: The rules of the Senate can be changed…easily. Just because it’s normally been the entire term of Congress, does not mean it has to be.

    The Framers seem to have regarded “recess” with an eye towards the gap between two Congresses, not with an eye towards shorter breaks, and the clause says that the recess “Commissions which shall expire at the End of their next Session.” If a shorter recess qualifies for appointments, and the courts say it does, does the “end of their [the Senate’s] next session” relate to the next time they take a recess, or to the end of this Senate late this year, or to the end of the next Senate, 2+ years from now? Hard to say, given how the courts have played around with the language (the clause says it allows appointments for “Vacancies that may happen during the Recess of the Senate,” but the courts have said that covers vacancies that happened while the Senate was in session and remain open when it recesses).

    Again, they get to make their own rules and as you have alluded, there is nothing that says they have to abide by precedent.

  126. Jack says:

    @HarvardLaw92:

    The constitution specifies that sessions of Congress must begin on January 3rd, unless the date is changed by virtue of law.

    Please point out this particular phrase. Because my Constitution doesn’t seem to reflect such.

  127. HarvardLaw92 says:

    @Jack:

    The rules of the Senate can be changed…easily. Just because it’s normally been the entire term of Congress, does not mean it has to be.

    Actually, no, they can’t. Changing the rules of the Senate requires a majority vote, and is subject to filibuster. In that instance, Democrats WOULD return to the chamber and shut it down.

    That having been said, the date of commencement of sessions of Congress is not determined by a rule of the Senate (or, for that matter, the House). It is mandated by the 20th Amendment. No simple vote of senators can undo that piece of work.

  128. HarvardLaw92 says:

    @Jack:

    20th Amendment, Section 2:

    “The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.”

  129. Jack says:

    @HarvardLaw92:

    “The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.”

    And yet, it doesn’t say when the session ends. It could assemble once on 3 Jan, and end on 4 Jan. And begin again on 5 Jan. That covers the constitutionality because Congress has indeed begun on 3 Jan this year.

    As I said earlier, NLRB also noted that “The Constitution thus gives the Senate wide latitude to determine whether and when to have a session, as well as how to conduct the session. This suggests that the Senate’s determination about what constitutes a session should merit great respect.” Congress might thus be able to declare the first session at an end, begin a second session, declare that at an end, and begin a third session. The recess appointment (and any others made to date) would terminate at the end of the second session.

  130. @Jack:

    For the purposes of the Recess Appointment Clause, the word “Session” refers to the period between the reconvening of the Senate after a sine die adjournment and the next sine die adjournment. The Twentieth Amendment to the Constitution provides that Congress will meet
    annually on January 3, “unless they shall by law appoint a different day.”6 Generally, a session of the Senate begins on that day and continues until sine die adjournment, usually in the fall. Congress normally adjourns sine die by adopting a concurrent resolution through which each
    house grants permission to the other to adjourn sine die.7 These adjournment resolutions today usually authorize leaders of each chamber to call it back into session after the sine die adjournment. If this power is exercised, the previous session resumes and continues until the
    actual sine die adjournment is determined, usually pursuant to another concurrent resolution of adjournment.8

    In practice, nonetheless, an initial sine die adjournment is generally considered to be the end of the Senate’s session for purposes of the expiration of a recess appointment.9

    Also:

    A recess appointment expires at the sine die adjournment of the Senate’s “next session.” In
    practice, this has meant that a recess appointment could last for almost two years

    https://www.fas.org/sgp/crs/misc/RS21308.pdf

    And:

    adjournment sine die – The end of a legislative session “without day.” These adjournments are used to indicate the final adjournment of an annual or the two-year session of a Congress.

    http://www.senate.gov/reference/glossary_term/adjournment_sine_die.htm

  131. HarvardLaw92 says:

    @Jack:

    No, Jack, it can’t. Whichever internet lawyer sold you this piece of stupidity is as dumb as you are.

    Each house may RECESS from session at their leisure, assuming they do not do so for more than three days without the consent of the other house. Congress may not ADJOURN unless both houses agree to do so, and once they have, the session is over until the following January.

    Recessing from a session is not, even remotely, the same thing as both houses agreeing to end a session. Sessions may only begin on January 3rd, by constitutional mandate, unless Congress actually passes a law (which, like any other law, requires presidential approval or the override of a presidential veto) changing the date. Simply changing the rules doesn’t cut it.

    Somehow in your head you have confused being in recess with being adjourned. They are NOT the same thing. Doubling down on your stupid and being unable to recognize when you are 1) wrong and 2) out of your depth are traits that you demonstrate with regularity.

    In all goodwill, just stop. You’re making yourself look like (more of) a fool.

  132. Jack says:

    @Steven L. Taylor:

    In
    practice
    , this has meant that a recess appointment could last for almost two years

    Congress has been called into Extra session twice by presidential proclamation – each time after adjournment of a “regular” odd session but before the following year’s even session had convened- each time by President Franklin Delano Roosevelt.

    In theory, Congress can call itself into “Extra” session. The 39th Congress, by law, called the 40th Congress into “Extra” session at the start of its term on 4 March 1867 in an attempt to prevent Andrew Johnson from calling a Special Session of the Senate.

    By the way: the technically correct term for a non-“regular” session of both houses of Congress is, in fact, “Extra” session- as the session is, nevertheless, counted as one of the numbered sessions of a Congress (which explains why some Congresses have had 3- or even 4!- sessions in a two-year term).

  133. HarvardLaw92 says:

    @Jack:

    Congress has been called into Extra session twice by presidential proclamation – each time after adjournment of a “regular” odd session but before the following year’s even session had convened- each time by President Franklin Delano Roosevelt.

    The absolute last thing that will ever happen in this scenario is that Obama will call a special session.

    In theory, Congress can call itself into “Extra” session. The 39th Congress, by law, called the 40th Congress into “Extra” session at the start of its term on 4 March 1867 in an attempt to prevent Andrew Johnson from calling a Special Session of the Senate.

    No, dear. That was preempted by the 20th Amendment in 1933.

    By all means, though, keep digging.

  134. Jack says:

    @HarvardLaw92:

    “EXTRA SESSIONS. Article II, Section 3, of the Constitution of the United States empowers the President “on extraordinary Occasions” to “convene both Houses, [of Congress] or either of them.” “Extra” or “special” sessions of Congress have been called so often that it is questionable whether these occasions are truly extraordinary. Frequently the Senate alone has been convened, often to confirm appointments made by a newly inaugurated president. Ratification of the Twentieth Amendment to the Constitution in 1933, which provides that the inauguration and the convening of the regular sessions of Congress will take place in the same month, substantially diminished the need for extra sessions.

    Unlike many state governors, the president cannot limit the agenda of a special session. Furthermore, the Congress has no obligation to act upon or even consider the matters for which the president convened the session. When President Harry Truman called a special session of both houses in 1948, a contrary Congress not only refused to act on the president’s recommended agenda, but it also gave its own leaders the unprecedented authorization to reconvene the legislature. With the exception of the provision involving the disability of the president (the Twenty-fifth Amendment, ratified in 1967), the national and state constitutions are silent on the question of whether legislative bodies may convene extra sessions on their own initiative.”

    As I said to Steven, in theory, Congress can call itself into “Extra” session. The 39th Congress, by law, called the 40th Congress into “Extra” session at the start of its term on 4 March 1867 in an attempt to prevent Andrew Johnson from calling a Special Session of the Senate.

  135. Jack says:

    @HarvardLaw92:

    That was preempted by the 20th Amendment in 1933

    No, cupcake. The 20th Amendment did not preclude EXTRA sessions that the Congress might call.

  136. @Jack:

    I have to agree with @HarvardLaw92:

    In all goodwill, just stop. You’re making yourself look like (more of) a fool.

    Although it is charming that you are sure your known about this than the Congressional Research Service.

  137. Jack says:

    @Steven L. Taylor:

    Although it is charming that you are sure your known about this than the Congressional Research Service.

    Show me where, in the law, Congress is not allowed to call an Extra session. Please, I’ll wait.

  138. HarvardLaw92 says:

    @Jack:

    No, the 20th Amendment mandates that ANY session of Congress MUST begin on January 3rd unless they change the date by law, which requires presidential assent or an override – neither of which they’ll get.

    The practical effect of that is this: you can’t have multiple sessions when any session has to begin on a certain date. One of the primary purposes of the 20th Amendment was to end the practice of Congress calling itself back into session. It was formulated precisely to prevent what you’re making a futile effort to pretend can still happen.

  139. HarvardLaw92 says:

    @Jack:

    As I said to Steven, in theory, Congress can call itself into “Extra” session. The 39th Congress, by law, called the 40th Congress into “Extra” session at the start of its term on 4 March 1867 in an attempt to prevent Andrew Johnson from calling a Special Session of the Senate.

    1867 is before 1933.

    Find me an instance where Congress called itself into special session post 1933. You won’t be able to – because the Constitution now bars them from doing so.

    What they were able to get away with prior to the ratification of the 20th Amendment is meaningless. Why you keep repeating it as though it had any merit escapes me – other than the fact that your ego won’t permit you to admit that (yet again), you’re wrong.

  140. Jenos Idanian says:

    @SKI: I’ve lost track of how many times I’ve brought up Obama’s illegal actions and been told “then impeach him.” That was my basically adopting the same attitude — “yeah, maybe you’re right. So what? What you gonna do about it? What can you do about it?”

    I’ll repeat: it was a dumb move by the GOP, a completely unforced error. But should they stick by it, there ain’t a damned thing anyone can do about it. Even trying to make it an issue in the Senate elections isn’t likely to do anything.

  141. Jenos Idanian says:

    There’s also the complication that neither House can adjourn without the consent of the others. Even if the Senate wanted to recess again to let Obama have his recess appointment, the House could block that.

    And thanks to the common sense applied in the NLRB case, it’s Congress that decides when they are recessed, not the president. So Obama can’t just say “they’re recessed, here’s my appointment” like he did with the NLRB.

  142. Jack says:

    @HarvardLaw92:

    No, the 20th Amendment mandates that ANY session of Congress MUST begin on January 3rd unless they change the date by law, which requires presidential assent or an override – neither of which they’ll get.

    No.

    Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

    After the first session is called, they can terminate that session and start a new one. The “at least once a year” should give you a clue.

  143. Jack says:

    @HarvardLaw92:

    Find me an instance where Congress called itself into special session post 1933. You won’t be able to – because the Constitution now bars them from doing so.

    I can’t because they haven’t–that doesn’t mean the Constitution doesn’t allow it.

  144. bloated sack of protoplasm says:

    @Pch101:..But we’re not debating the manner in which the Senate engages. They are refusing to engage.

    February is Black History Month

    The opposite of pro is con
    That fact is clearly seen
    If progress means move forward
    Then what does Congress mean?

    Thank You Nipsey Russell RIP
    1918-2005

  145. SKI says:

    @Jenos Idanian:

    I’ve lost track of how many times I’ve brought up Obama’s illegal actions

    I’d suggest the difference is that Obama’s actions aren’t actually illegal AND impeachment would actually be an available remedy. In the case of the Senate refusing to act, however, there is no corollary remedy as it would be the Senate that would have to impeach itself.

    I think it very will have some impact though – particularly in purple or swing states. There are 6 states that Obama carried in 2014 whose Republican Senator is up for re-election this fall.

  146. HarvardLaw92 says:

    @Jack:

    After the first session is called, they can terminate that session and start a new one. The “at least once a year” should give you a clue.

    The “at least once a year” is meaningless, much like your buddy Scalia determined that half of an amendment is meaningless.

    The Amendment doesn’t specify “may begin”. It specifies “shall begin”.

    Again, you are confused. A special session is a meeting called at a time when the body of Congress would otherwise be in recess – in other words a continuation of the existing session which, by constitutional mandate, must begin on January 3rd. It’s Congress saying “we’re going to rearrange our recess calendar”, not Congress saying “we’re ending one Congress and beginning another.”

    The only person who may, by constitutional grant of authority, mandate Congress back into session once they have adjourned is the president, and trust me, the last thing you’ll ever see in this instance is Obama doing anything to negate the possibility of a recess appointment.

    You still seem unable to grasp the difference between “recess” and “adjourn”. I can’t help you any further with that one. Perhaps you need to consult the dictionary.

  147. Jack says:

    @HarvardLaw92: Do they have a different meaning for “at least” at Harvard?

    If the 20th amendment directed only one session per year it would say:

    The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

    But it doesn’t, so you are wrong. Congress can have 50 sessions if they so desire and agree.

    I never said special session. I said Extra Session. Please, look it up.

  148. HarvardLaw92 says:

    @Jenos Idanian:

    There’s also the complication that neither House can adjourn without the consent of the others.

    Neither house can VOLUNTARILY recess for more than three days without the consent of the other. Failing a quorum call isn’t voluntary. In that instance, the Senate would be in recess until a majority of senators got their behinds back into the chamber to satisfy the quorum.

  149. HarvardLaw92 says:

    @Jack:

    Let’s try this again.

    The practical reading of Section 2 is this:

    “you can have as many sessions as you want, but they have to begin on January 3rd unless you pass a law changing the date.”

    So, if we’re to insist on following your tortured thinking, Congress can have 60 sessions if it wants.

    But they all have to begin on January 3rd. It was written precisely to prevent multiple sessions in a given year. You haven’t seen multiple Congressional sessions in a calendar year since 1933, and never will again absent the exercise of presidential mandate, because the 20th Amendment makes them impossible.

  150. the amount of argumentation offered up by Jack to justify his initial harebrained scheme is rather remarkable.

  151. Jack says:

    @HarvardLaw92:

    But they all have to begin on January 3rd.

    No, only the first session of that congress must begin 3 Jan.

    Do you have reading comprehension problems? Do you also believe “the people” is a reference to the militia?

  152. Mikey says:

    @Steven L. Taylor: The Dunning-Kruger effect is a formidable thing indeed.

  153. Lit3Bolt says:

    @Steven L. Taylor:

    I’m worried about normalizing this kind of political brinkmanship, but it will probably only get worse in my lifetime. A less scrupulous President could put pressure on Senators quickly by withdrawing all federal funds and agencies from the state, refusing to grant federal disaster relief, close all military installations and bases, etc.

    Eventually the SCOTUS itself will have to take sides in this fight if it continues this year and beyond, and faith in American government will continue to erode.

    Just because it’s Constitutional doesn’t make it right.

  154. HarvardLaw92 says:

    @Steven L. Taylor:

    He always does this. He gleans some fantastical nugget of “law” from one of his looney tunes internet forums and then tries to argue with actual lawyers that they’re wrong and he’s right. I’m not sure if he actually believes this tripe or it’s just more a matter of him trying to best people he despises (and who I presume he must presume despise him in return, which is silly).

    On some level, I parry with him just to amuse myself, but it quickly (as it has now) becomes boring. Defenseless fish are never sporting.

    The practical outcome of this discussion is, as it usually is where he is concerned, to simply respond to him with “get back to me when this actually happens”.

    He, of course, never does because, of course, it never does.

  155. HarvardLaw92 says:

    @Jack:

    Get back to me when this actually happens 😀

  156. Jack says:

    @Steven L. Taylor: As someone (you) once said, “Here’s the thing, the only way to establish that the Senate is behaving “unconstitutionally” would be for the President to take the Senate to Court to force a vote. This strikes me as an unlikely course of action for a variety of reasons.”

  157. Pch101 says:

    Jack suffers from a serious Dunning Kruger problem.

  158. Jack says:

    @HarvardLaw92: I suggested it as one possibility. If it happens, I will.

  159. HarvardLaw92 says:

    @Lit3Bolt:

    The $64,000 question here is, if Democrats win control of the Senate in November, has the brinksmanship the Republicans have engaged in here given them sufficient political cover to just go ahead and invoke the nuclear option for SCOTUS justices, and then stack the court with spry, young liberals while they have the chance.

    It would change the nomination game permanently, of course, but at that point it wouldn’t matter much. Republicans would subsequently be stuck with waiting 20 to 30 years to flip the tenor of the court back to a conservative bent. A generation of liberal rulings would be a fait acompli.

    By the time those justices are in line for replacement, much of the current GOP base will have died out, and the party may not even exist any longer in its current incarnation.

  160. HarvardLaw92 says:

    @Jack:

    See previous response

  161. Jack says:

    @Pch101:

    Jack suffers from a serious Dunning Kruger problem.

    Ah, yes. The typical libtard response to those with whom you disagree. Let me guess, you’ve completed Psych 101 and have begun Psych 102?

    Please, look up God Complex and then look in a mirror.

  162. Pch101 says:

    Jack, you’re just not very bright.

    Whether this is the result of laziness, a genetic failing or both, I don’t know. What I do know is that you have a poor grasp of facts, as you amply demonstrated with your failure to grasp that Cruikshank says the very opposite of what you think that it does, yet you continue to argue the same lame points even after this easily verifiable fact is pointed out to you.

    Harvard should have been clearer about this, but (a) each chamber of Congress has one session per year (b) and that one session starts on a date specified by constitutional amendment, with (c) the logistics of changing this ensuring that this will remain the case, unless (d) the president who you despise calls for an extraordinary session, which he won’t.

    Your argument is the equivalent of a third-rate hand job and not worth worrying about. Coming from you, “libtard” is a compliment.

  163. C. Clavin says:

    @Jack:

    with the exception of freedom of religion which Scalia was a staunch supporter.

    Scalia was not a staunch supporter of freedom of religion.
    He was a staunch supporter of so-called christians freedom to impose their superstitions on others.
    Hence Hobby Lobby…about the most piss-poor decision ever rendered.
    I think everyone else has been doing an admirable job dealing with your lack of comprehension abilities, so I’ll leave it at that.

  164. HarvardLaw92 says:

    @C. Clavin:

    Jack sees everything though the lens of his gun fetish – ergo Scalia good.

    His fear – and he should be afraid in that respect – is that a more liberal court will put the kibosh on his two favorite rulings.

  165. al-Ameda says:

    @Jack:

    Ah, yes. The typical libtard response to those with whom you disagree. Let me guess, you’ve completed Psych 101 and have begun Psych 102?

    “Libtard”?
    I could say that that is the typical middle-school-recess-level Republican response to liberals that we’re accustomed to, but I won’t.

  166. @Jack: I never said your whole scheme was unconstitutional, I noted that you don’t understand what “session” means in context (even after I provided you with a CRS definition).

    That you seem unwilling to grasp the concept is not my fault.

  167. Argon says:

    To wit, the following scenario is very real possibility: a newly elected President Clinton, with a more Democratic Senate, can assert that the people have spoken (a la Senator McConnell) and therefore feel rather unconstrained in her nomination of the next Associate Justice, which the Republicans will have a harder time blocking.

    I don’t see Republicans giving a crap if the remainder of them are in safe seats. What they should worry about is the death of fillibusters.

  168. DrDaveT says:

    @HarvardLaw92:

    It would change the nomination game permanently, of course, but at that point it wouldn’t matter much. Republicans would subsequently be stuck with waiting 20 to 30 years to flip the tenor of the court back to a conservative bent. A generation of liberal rulings would be a fait acompli.

    It would absolutely be worth it. Conservatism is a moving target; 30 years from now, conservatives will be defending things that liberals are still trying to accomplish today. There’s no going back once you have freed the slaves, given women the right to vote and own property, established that Christianity is no more privileged than Rastafarianism under the law, conceded that any two adults who wish to enter into a marriage contract should be able to do so, etc. Conservative victories are temporary; progressive victories are forever.

  169. Just 'nutha ig'rant cracker says:

    @OzarkHillbilly: I would say that hating both is okay. In this case, we have a situation where the players have an alternate game available–do a “tough guy” posture for the audience and then do whatever politics dictate regarding the process. Instead, the GOP seems to be going with a “Obama isn’t “really” the President” and the decision should be postponed until “the people” have a say. (Yes, I know that no one has actually SAID “Obama…” but for “the people” to have “their say” it is the contingent–and unstated–premise.)

    The fact that–despite all of the attempts of Doug and others to establish otherwise–no one ever seems to have played this particular game before makes me hate the players more than I do the game. But I’m just an igrant cracker.

  170. Just 'nutha ig'rant cracker says:

    @Steven L. Taylor: I’ve seen pictures of your kids. They look a lot more sane and responsible than I picture Jack and C. Claven to be.

  171. Just 'nutha ig'rant cracker says:

    @Jenos Idanian:

    Even trying to make it an issue in the Senate elections isn’t likely to do anything.

    On an at large basis, you’re probably right. In the question of vulnerable Senate seats up for election in 2016, I’d have to see it brought up and seemingly rejected by voters to be a convert.

    It’s certainly not a sea change issue but as an issue that gets a seat or two more in an election where 5 or so seats are already systemically vulnerable? Worth a shot!

  172. Just 'nutha ig'rant cracker says:

    @C. Clavin:

    He was a staunch supporter of so-called christians freedom to impose their superstitions on others.

    Mr. Clavin, that is the definition of religious freedom on the right.