They Had the Votes

Disconnected representation in action.

Source: The White House

While one can understand the frustration that many have over the confirmation of Amy Coney Barrett to the US Supreme Court, the bottom line had been that the Republican Party currently controls both the nominating mechanism and the confirming mechanism.

Accusations of hypocrisy vis-à-vis the Garland nomination were never going to carry the day, nor were parsings of history.

This was inevitable from the moment Ruth Bader Ginsburg passed.

Via NPR: Amy Coney Barrett Confirmed To Supreme Court, Takes Constitutional Oath

The Senate has voted 52-48 to confirm Judge Amy Coney Barrett to the Supreme Court, just about a week before Election Day and 30 days after she was nominated by President Trump to fill the seat of the late Justice Ruth Bader Ginsburg.

[…]

The only Republicans who voted against the cloture motion on Sunday were Sens. Susan Collins of Maine and Lisa Murkowski of Alaska.

Appeals to norms were never going to stop this, if anything because whether we like it or, the most significant norm in play here was that a party in power is not going to voluntarily surrender its power.

Outrage over this move is, ultimately, born of disappointment and frustration than any realistic expectation that a party in the Republican’s current position would behave any differently.

And yes, Merrick Garland deserved a hearing and a vote. And he almost certainly would have been voted down because, again, the Republicans had the votes then, too.

The issue at hand is not norms. Nor is it the shocking appearance of hypocrisy in politics.

This is ultimately about institutions and we, as a country, need to come to terms with it.

This is the result of bad design of the Supreme Court, which creates a capricious and arbitrary timeline for replacements.

This is the result of a system wherein the nominating power can come into power without even plurality support across the country.

This is the result of a confirming power that imbues power to the party that represents a minority of the citizenry.

And, more broadly, as really needs to be heard far and wide: the Republican Party has won the plurality of the vote (i.e., the most votes nationally) once (2004) in the last three decades and yet it nominated 5 Justices during that period and now has a 6-3 majority on the Court.

There is a massive imbalance here.

Focusing on norms and hypocrisy misses the point. The most dominant norm in politics is power and using it when one has the chance. And maybe the second most dominant norm in politics is hypocrisy.

On that last point, let’s not forget that the country that was founded via a document that stated “all men are created equal” also had chattel slavery until 1865. So, appeals to a romantic past when we adhered to more honorable practices are a bit problematic.

Change is hard, clearly. It starts with understanding and dissemination of that understanding.

Hypocrisy is not the problem.

The problem is that there is a profound disconnect between the governed and government.

The more people who understand this, the better.

(And, of course, all of this is why I am where I am on a list of reforms).

And, for those who think all of this is fair and acceptable because the rules are the rules, I would first ask how they would feel if the shoe was on the other foot? I would then ask: how long can a system that is supposedly predicated on “government of the people, for the people, by the people” persist if the majority increasingly becomes aware that the frustration they are feeling is because of those rules?

FILED UNDER: Campaign 2020, Donald Trump, Supreme Court, U.S. Constitution, 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. SKI says:

    And, for those who think all of this is fair and acceptable because the rules are the rules, I would first ask how they would feel if the shoe was on the other foot? I would then ask: how long can a system that is supposedly predicated on “government of the people, for the people, by the people” persist if the majority increasingly becomes aware that the frustration they are feeling is because of those rules?

    The storm is coming….

    With luck, it will wash all clean.

    9
  2. al Ameda says:

    And yes, Merrick Garland deserved a hearing and a vote. And he almost certainly would have been voted down because, again, the Republicans had the votes then, too.

    I can’t disagree with any of this or your piece taken whole.

    I think it – the Merrick Garland Incident – where Republicans dispensed with regular order (there would be no hearing, no up-or-down vote on the nomination) was the beat down that finally caused Democrats to realize that Republicans were telling them ‘we have the power, we’re going to eviscerate you, smash you, own you.’ It took Democrats about 8 years to realize that Republicans were deadly serious about exercising all power available to them.

    I’ve turned the corner on this stuff, I now think Democrats, should they run the table a week from now, expand District Courts, and give very serious consideration to expanding the Supreme Court from 9 to 13 Justices. I hope Democrats exercise power dynamically.

    33
  3. PJ says:

    And, for those who think all of this is fair and acceptable because the rules are the rules, I would first ask how they would feel if the shoe was on the other foot? I would then ask: how long can a system that is supposedly predicated on “government of the people, for the people, by the people” persist if the majority increasingly becomes aware that the frustration they are feeling is because of those rules?

    I believe they would all be talking about “Second amendment solutions”…

    ….

    The Supreme Court should be packed.
    Puerto Rico and DC should be given statehood.
    And the Trump crime family should be thoroughly investigated.

    21
  4. wr says:

    @al Ameda: “I’ve turned the corner on this stuff”

    And it’s not just you. When Chris Coons is calling for radical action in the senate, changes are coming.

    11
  5. Jen says:

    A reminder that no one here needs: it isn’t *just* the Supreme Court, Trump and McConnell have stacked the lower courts too.

    Merrick Garland was simply the highest-profile individual to be treated with contempt.

    I have nothing but ill-will towards McConnell. He has almost single-handedly ruptured the institution of the Courts, and the damage is going to last for decades.

    30
  6. Scott F. says:

    I would then ask: how long can a system that is supposedly predicated on “government of the people, for the people, by the people” persist if the majority increasingly becomes aware that the frustration they are feeling is because of those rules?

    Well, the answer is at least three decades. But, in a week, we will understand much better how much longer the system will endure.

    The next question then becomes how do “the people” make change when the mechanisms the Founders gave us have atrophied so badly. A strong dose of majority rule would be a good start.

    Go Vote!

    8
  7. gVOR08 says:

    There is a very real chance that McConnell will retain 51 seats in the Senate. If he does, the new rule will be that the Senate will not consider any judicial nominee from a president of the opposite party. Period. Nor anything else the President wants. It’ll be another game of make the D a one term president by blocking any relief for the current crisis. Screwing the country over for partisan advantage. Again.

    On the softball side, assuming Susan Collins is still with us, I’d suggest Angus King and Bernie Sanders have a long talk with her about party affiliation. On the hardball side I’d suggest the EPA, OSHA, and IRS pay very close attention to Koch Industries and Charles Koch personally. And Elaine Chao. Biden talks about bipartisanship and comity. He isn’t naive. I hope he has plans for an iron hand inside that velvet glove.

    It used to be that Ds wanted things and Rs wanted things and there was some degree of bargaining. Now Rs don’t want anything. They’re content with things as they are, what Hacker and Pierson call “drift”. Biden will need to find ways to make the plutocratic Rs want something bad enough for McConnell to bargain for it. I’m suggesting above that Biden apply targeted regulatory enforcement. Any other suggestions?

    6
  8. gVOR08 says:

    @Scott F.:

    Well, the answer (to how long our anti-majoritarian system can last) is at least three decades.

    Yes. It ain’t just Trump. But this year’s voter enthusiasm is driven largely by Trump. It’s time to start worrying about a big bounce-back mid-term and 2024. The Rs aren’t stupid. Evil, but not stupid. They’ll adapt. I’ve said before, I expect outreach to White Hispanics and changes to the nominating process to ensure we return to lovable buffoons like W as the figurehead of the party.

    5
  9. DA says:

    Soon we’ll have the votes. And then somehow, magically, having the votes won’t be enough of an argument anymore in their eyes.

    5
  10. Daryl and his brother Darryl says:

    McConnell made the end-result of this entire episode clear when he said; “I think this nominee will be a political asset for our candidates around the country.”
    In related news….Justice Boof certainly earned his money in yesterday’s ruling, including a theory he must have come up with when he was drunk.
    Plus they are now quoting Bush v. Gore which was explicitly explained as “limited to the present circumstances.”
    The Supreme Court is now a fully functional aparatus of the Republican Party.

    10
  11. OzarkHillbilly says:

    The rules are the rules and if we have the House, the Senate, and the White House, we should tell the GOP to go F itself and expand the courts.

    24
  12. Daryl and his brother Darryl says:

    @OzarkHillbilly:
    I agree…and the effort should be branded as “Unpacking the Courts.” Unfortunately Democrats suck at branding.

    6
  13. Paine says:

    In the overused two wolves and a sheep arguing about dinner analogy I’m still waiting to hear a good answer as to why the two wolves would tolerate the sheep dictating what’s on the menu.

  14. a country lawyer says:

    The last Chief Justice to be appointed by a Democratic President was Fred Vinson by Harry Truman in 1946-more than seventy years past. In addition a substantial majority of the associate justices during that period have been Republican appointees.
    I first began note of this situation as a law student in the early 70’s when Nixon appointed Warren Burger and Harry Blackmun as chief and associate justices replacing Earl Warren and Abe Fortas. That was not a particular concern at the time because the stark conservative/liberal split we have now had not yet materialized. Some of the most liberal justices of the post WWII era have been Republican appointees. Earl Warren and William Brennan were Eisenhower appointees. Harry Blackmun the author of Roe v. Wade was appointed by Nixon, John Paul Stevens by Ford and David Souter by Bush Senior.
    That changed when the conservatives recognized that to control the Supreme Court and with it the ability to make the changes they could not in the legislatures they needed to control the process from the ground up. Out of that was born the Koch funded Heritage Foundation, the incubator off baby judges who would make it to the appellate courts and ultimately the Supreme Court, tasked with carrying out the conservative agenda. The Republicans played the long game while the Democrats sat by and ignored what was happening before their eyes. And now what we have is an ultra right wing court which can and has shown it will thwart any attempt to establish laws which clearly reflect the majority will of the citizens. We are reaping what we have sown and only drastic measures such as so called court packing can return the nation to some sort of normalcy.

    8
  15. Not surprised at all Liberal Capitalist says:

    They had the votes, so they did it.

    I had a gun, so I took it.

    We were stronger, so we raped it.

    They were ignorant and weak, so we took their land.

    They didn’t have the same background as us, so we eliminated them.

    So easy, once you know what is just a piece of paper.

    11
  16. @Not surprised at all Liberal Capitalist: There is a radical difference between the first item on the list and the rest.

    The first is within the context of a constitutionally created process. The rest are crimes.

    It is vitally important, I think, to understand what happened in the context of the system, not some appeal to “they should have been nicer.”

    If people are convinced that the solution to the problem is nicer politicians, energy will be put in the wrong place.

    4
  17. Kingdaddy says:

    As part of our ongoing dialogue about culture and institutions, I’ll say that I partially agree with you. The situation with the Supreme Court has some parallels to the struggle against institutional racism. You can point out that people have bad attitudes, but that doesn’t compel them to change anything. We need some fundamental institutional reforms, akin to Reconstruction before the federal government tragically abandoned it.

    But we have to be prepared for the likely reaction from people who will continue to cleave to their anti-majoritarian, razed earth approach to power (I hesitate to say “governance,” since that’s not their priority). Not only will there be rabid opposition to, say, court expansion, but assuming it happens, there will be relentless attacks on the expansion judges. The effect on the legitimacy of the court will not be a concern, because ipso facto, a court that Federalist Society judges do not dominate is not legitimate.

    And by anti-majoritarian, razed earth types, I’m talking about the nicer elements of the opposition. Beyond them, we also have the authoritarian and fascist types, for whom no institution is sacred if it stands in the way of their völkisch vision of a proper America.

    Institutional changes are indeed important short-term steps. We must take them with full knowledge of the deeper problems with our political culture, ranging from widespread ignorance of our existing political system to the metastasis of genuine authoritarianism and fascism. To do otherwise is to weaken these institutional efforts from the very start. We need to be psychologically ready for this continued struggle, and we need to have a long-term strategy for dealing with them. It’s worth remembering that, after Appomattox, white Southerners were still fighting against the North, and even re-instituted a form of slavery by another name. We need to be a move ahead, not constantly reacting to the opposition. We need to include the following question in every technocratic discussion about options like DC statehood and proportional representation: “And what will the anti-majoritarian, anti-democratic elements do in response?”

    10
  18. @Kingdaddy: I don’t disagree, but I think I frame it a bit differently in my own mind, as well as place the emphases in different places.

    I have long stressed education (which, I suppose, could be reframed as changing the culture) in the sense that I think that there is a fundamental lack of understanding, regardless of partisan or ideological positioning, of what our institutions actually produce. There is a tendency, across the spectrum, to believe in the American myths.

    Understanding can break through mythologies (although it is hard). But aligning knowledge with interest can help: hence my ongoing emphasis on minority rule as a consequence of institutions.

    But yes: there will be backlash. This is unavoidable. And yes, trying to address that has to be part of the process.

    I suppose I don’t focus on that at the moment, because I don’t think we even have consensus about what the institutional problems are and how to fix them.

    Fundamentally, my most basic call is this: if the Democrats win the House, Senate, and Presidency they will have perhaps as little as two years to try and enact some reforms before the minority-centric institutions of our ailing democracy potentially reassert themselves.

    The Republicans are demonstrating the necessity of action when the votes are available and the Democrats are going to have to respond in kind.

    And, yes, try and move the culture along as best as it is possible.

    Also: I find all of this to be a bit of a chicken-and-egg discussion. What really comes first, cultural change or institutional change (if we want to cast it in that direction)?

    7
  19. KM says:

    @Steven L. Taylor :

    The first is within the context of a constitutionally created process. The rest are crimes.

    Yes they are crimes – for now, anyways. Funny thing about that is that when Might Makes Right is a semi-official governmental principle, it tends to flow into the actual laws of the land and their enforcement. In particular, the rape example is relevant because we see enough apologetics already from conservative and old school types as to why it’s what is and isn’t “legitimate rape”. Martial rape only became illegal recently after much controversy. Considering who just got put on the SC and her suspected religious stance on it (murder, no compassionate exceptions), abortion caused by rape is now going to be subjected to this mindset. We *can* force you to carry the baby of your assaulter and thus assault you again for 9 months because we *can*. How it that not because we were stronger, we forced our will upon you?

    I don’t think you really grasp that constitutionally created processes can strip rights away and will be used for that purpose shortly. A right today can be a crime tomorrow. As a female in a deep red area, I’m *very* aware of this. I’m very aware that a good portion of the women I know would be in jail if Barrett has her way. I’m aware friends’ marriages can become illegal and I could be committing a crime by fulfilling a prescription. Unless Dems embrace the new ethos of Might Makes Right to protect minorities around the country, we’re all about to get a harsh lesson about what happens when you ignore the Party gleefully sliding down the slippery slope.

    5
  20. @KM:

    I don’t think you really grasp that constitutionally created processes can strip rights away

    And why would you suggest that I don’t understand this? What about the years of me writing on this site would suggest that I would be blind to that? (Not to sound too argumentative, but I would think I have earned a bit more of the benefit of the doubt than you are giving me).

    There is a difference, and an important one, between comparing a legal process with illegal ones and stating that legality itself can be perverted or that the illegal can be made legal.

    We have to get straight what the prolems are, and what category we out them in, if we want to fix them.

    And, for the record, I never said that “might makes right”–I am simply pointing out that power politics is not new and that the main problem is that our institutions empower the minority over the majority.

    7
  21. Bearing in mind that my pushback is very light – this seems a pretty solid argument – I do wonder if it isn’t the case that when the nominating power and confirming power are split, we’ve seen them confirm nominations historically. I mean, that’s happened right?

    It famously didn’t happen with Robert Bork, who, as the person who fired Archibald Cox, was not going to get a court seat as a reward, as far as Senate Democrats were concerned. But it seems to me that it happened a lot otherwise.

    Still, I agree that the unpredictable nature of vacancies creates a big problem – as does the EC.

    1
  22. Sleeping Dog says:

    @gVOR08:

    The Rs aren’t stupid. Evil, but not stupid. They’ll adapt. I’ve said before, I expect outreach to White Hispanics and changes to the nominating process to ensure we return to lovable buffoons like W as the figurehead of the party.

    Assuming a Biden landslide and Rs losing the senate, it has been expressed here that the Rs will have a soul searching and will reform. Frankly that’s naive, with a sympathetic court system and a different electorate in the mid terms, Rs can do quite well and retake the Senate. Given reapportionment and Dem gains in 2020 in state houses and state legislatures, the House is likely beyond R grasp for a decade.

    A 2022 R senate will stymie Biden and the likelihood that he will be a one termer anyways, would make an R presidential candidate an even money possibility to win.

    The Rs won’t change their program, till they lose multiple election cycles.

    9
  23. @Jay L Gischer:

    I do wonder if it isn’t the case that when the nominating power and confirming power are split, we’ve seen them confirm nominations historically. I mean, that’s happened right?

    Keep in mind that in the past three things were true that are no longer true:

    1. A lot of Dems were southern, conservative Dems.
    2. The filibuster used to be possible for nominations
    3. The parties and country weren’t as polarize

    (1 and 3 are linked)

    3
  24. @Sleeping Dog:

    it has been expressed here that the Rs will have a soul searching and will reform.

    I would hypothesize that only the loss of Texas will cause enough of a shock to really spark near-term real changes in the party.

    7
  25. SKI says:

    @Jay L Gischer:

    It famously didn’t happen with Robert Bork, who, as the person who fired Archibald Cox, was not going to get a court seat as a reward, as far as Senate Democrats were concerned. But it seems to me that it happened a lot otherwise.

    Ugh. Bork got a full hearing and a bipartisan rejection both for his role in the Saturday Night Massacre and for his truly extreme views on the law. It wasn’t just “Senate Democrats”.

    The final vote was 58-42 with 6 GOP rejecting and 2 Dems supporting.

    12
  26. DrDaveT says:

    @Steven L. Taylor:

    There is a radical difference between the first item on the list and the rest. The first is within the context of a constitutionally created process. The rest are crimes.

    I’m not sure that those enslaved prior to the Emancipation Proclamation would find this allegedly radical difference to be all that important. I understand the need for laws, and for rule of law, but I also understand that legal evil is no less evil.

    5
  27. Kathy says:

    Plainly they’ve interpreted the Biblical commandment not to steal to exclude Supreme Court seats.

    Of the 6-3 majority, 5 of those six were appointed by men who lost the popular vote.

    Next step: cease quoting laws at people holding swords.

    1
  28. Gustopher says:

    @PJ:

    I believe they would all be talking about “Second amendment solutions”…

    If we had our own deranged gun nuts, lifetime appointments wouldn’t be a big thing… Just as taxes are the price the wealthy pay to not be hung from lamp posts, norms that make the system appear fair are the price ruling parties pay to … well… not be hung from lamp posts.

    We were dangerously polarized before this, and I expect that at some point there will be violence. I don’t see the Republicans changing course before there is tragedy that affects them personally.

    We need to expand the court to the point that each justice isn’t important enough to make the stakes this high. Way past 13.

    1
  29. Gustopher says:

    @Steven L. Taylor: 1 and 3 are linked only in that once right wing Republicans stopped getting their way, they began demonizing the Democrats and seeking to remove them from the equation completely.

    The Hastert Rule roughly was grab everything you can while you have power*.

    *: over minors.

    4
  30. Sleeping Dog says:

    @Steven L. Taylor:

    Coincidentally, CNN has a long piece on the Dem revival in Texas and possible R response.

    If the R response to a drubbing is to blame Trump, then the likelihood of a change is diminished. A Biden win in Tx will set off alarm bells, but it won’t result in change, too many interests are well served by the current R party and only repeated losing will change that.

    4
  31. EddieInCA says:

    I’m in the camp of adding SIX justices to the court. A nice 15 sounds about right. If what it takes is raw power, then let’s do it.

    Texas, AZ, GA and NC will soon be fully blue. The old white male demographic is dying, literally.

    The Supreme Court can’t stop the culture, even though it’s going to try. Many rights granted over the past 40 years are going to be struck down.

    4
  32. @DrDaveT:

    I’m not sure that those enslaved prior to the Emancipation Proclamation would find this allegedly radical difference to be all that important. I understand the need for laws, and for rule of law, but I also understand that legal evil is no less evil.

    While I suspect that I deserve some the blame for not being clear, I can’t help but feel like people are purposefully missing the point.

    I never said legal things can’t be unjust.

    I made a very specific point about comparing a legal action to illegal actions. It is a category error.

    Taken on its own, the fact that majority party voted by majority vote to confirm a nominee is not the problem here.

    To go back to the thieoriginal post:

    They had the votes, so they did it.

    Is not the same category as:

    I had a gun, so I took it.

    Unless when the Democrats have the votes and expand the Court or add states you are going to say the same thing.

    Sometimes it seems like people are so mad at the GOP that anything that even sideways sounds like a defense leads to pushback.

    6
  33. @SKI: Excellent points.

  34. @Gustopher:

    1 and 3 are linked only in that once right wing Republicans stopped getting their way, they began demonizing the Democrats and seeking to remove them from the equation completely.

    There are linked because part of polarization has been the sorting of the parties more clearly geographically and ideologically (a lot of the conservative Dems are now Reps, such as the senior Senator from my state).

    2
  35. @Sleeping Dog: I have some half-baked thoughts about this, but I will say that a loss in Texas will upend the current GOP Electoral College thinking and that will matter.

    1
  36. @Steven L. Taylor: To put it another way: is anyone going to equate “They had the votes, so they did it” with “I had a gun, so I took it” when talking about the ACA? Or the Civil Rights Act or what thing you like?

    1
  37. I’m seeing now that ACB, after being confirmed, appeared at a Trump campaign event. Is this normal? Have confirmed Justices participated in campaign events before?

    Good lord.

    6
  38. Teve says:

    @Sleeping Dog: polls yesterday in Texas have Trump up by 4 and 5 points, unfortunately.

  39. Scott F. says:

    @Kingdaddy: and @Steven L. Taylor:

    We need to include the following question in every technocratic discussion about options like DC statehood and proportional representation: “And what will the anti-majoritarian, anti-democratic elements do in response?”

    But yes: there will be backlash. This is unavoidable. And yes, trying to address that has to be part of the process.
    I suppose I don’t focus on that at the moment, because I don’t think we even have consensus about what the institutional problems are and how to fix them.

    I would argue that the only way we get to any kind of consensus on what the problems are is for the Democrats to lean into the backlash. Right now the people having a problem with anti-majoritarianism is the majority. The minority is fine with the status quo.

    Once in power, the Democrats need to use every means at their disposal to have their way with the Republicans. Norms and Decorum be damned. It needs to be shown what the Tyranny of the Majority really looks like. That’s the only way you get both parties to the table to negotiate a common solution.

    2
  40. Jen says:

    @Jay L Gischer: I’ve been trying hard to avoid reading too much, but what I saw was that there was a sort of “victory party” for her after her confirmation–not that it was a *campaign* event.

    If it’s something other than that and was a campaign event for Trump, I’d say that would be HIGHLY unusual and quite frankly dishonorable, disreputable, stupid, etc.

    2
  41. Kylopod says:
  42. Kathy says:

    @Jen:

    It was the swearing-in ceremony, conducted by Justice Thomas.

    But when has Trump not turned anything into a campaign event?

    3
  43. KM says:

    @Steven L. Taylor :
    I didn’t mean to make it sound as if you are blind to the problem. Rather @Steven, you are a rational and kindly human being and thus will naturally have issues understanding the mindset, making it harder to fully get the implications of an action. That’s not a fault – sane and decent people should have difficulty grasping sociopathy or abuse. However, it results in the same blinkers that make people think someone like Trump can change or “become Presidential” or still be surprised there’s a new despicable low he can hit. Someone who is more vulnerable like myself feels it more keenly because frankly we’re first on the list when Gilead starts. We can’t afford to trust “that’s a bad example because it’s illegal” when we know damn well illegal won’t mean a thing push comes to shove.

    The thing is the mindset @Liberal Capitalist invoked in their post *is* Might Makes Right. Once one has decided to toss norms aside to grab power, it’s only a matter of time before the standards for what’s acceptable to set aside will lessen. Absolute power corrupts absolutely, after all. If a Party thinks it’s OK to upend the Constitution because you have the power to do so (something dubiously legal to start with), why is it such a stretch to think dipping a toe into the harsher side of Rule Through Power is out of bounds? These are people who already embrace criminality in their government. This is a group that spreads conspiracy theories and plots to kidnap and kill government officials telling them to wear masks. In fact, “I had a gun, so I took it” is on display right now in all the cases of police brutality and racial killings we’re seeing. What is “I feared for my life” other then “I had a gun, so I took (your life)” legally justified?

    We’re in a dangerous stage right now. People who’ve lived through authoritarian regimes are screaming warnings at us left and right. I’m pretty damn sure murder and rape were illegal under Stalin, Pinochet, Mao and others but that didn’t protect the people from those who had enough power to get away with it. Once the ruling Party embraces Screw The Rules, I Have Power something’s legal status isn’t going to mean much and can in fact become flexible.

    5
  44. Kathy says:

    BTW, before reforming the courts, Biden’s first order of court business should be to ask Justice Breyer to retire.

    Forgotten amid the McConnell Heist, is the plain fact that Justice Ginsburg should have retired in 2015 to allow Obama to name a replacement. I don’t think McConnell would have gotten away with stealing that seat back then.

    Doug used to describe the Heist as McConnell having taken a gamble and won. Well, Ginsburg took two gambles and lost.

    And Republicans do understand the partisan makeup of the Court. Why else did Justice Kennedy retire in 2018? He didn’t even gamble that the GOP would keep the Senate in the 2018 midterms, even though that was overwhelmingly likely.

    So, get Breyer’s replacement on the Court early, then reform the whole Judiciary branch. I still think proposing an expansion of the Court along with an increase in the number of Federal judges will go over better than simply packing the Court would.

    What will be more tricky is who gets to nominate the expanded seats. Teh Constitution says the president does, but if Biden names 4 or 6 Justices within his first two years, ti will be seen as a power grab.

    To mitigate this, he could form a bipartisan commission to propose half the nominees, and/or nominate a couple of moderate or liberal Republican candidates, should any still exist.

    6
  45. Sleeping Dog says:

    @Teve:

    Yes, the NYT/Sienna poll had trump up by 4-5, though the Dallas newspaper/UTX poll over the weekend was much closer. The fact that Biden is really only showing the flag in TX, is indication enough that he doesn’t believe he can win there.

    1
  46. charon says:

    @Sleeping Dog:

    The Rs won’t change their program, till they lose multiple election cycles.

    I believe they are destined to lose a whole lot of consecutive cycles, but even that will not cause them to change. Eventually they will just become nonviable and suddenly collapse like the Federalists and Whigs before them.

    They need to appeal to their voters, a dominant fraction of whom are religious fundamentalists or religious conservatives. These leopards do not shed their spots, they just double down.

    In 2024 the 14 to 17 year olds will be voting and they are (with good reason) phenomenally angry at the GOP and its constituencies of gun nuts, racists, sexists and bible thumpers. Anti-GOP sentiment has a really strong demographic wind in its sails.

    @Steven L. Taylor:

    I would hypothesize that only the loss of Texas will cause enough of a shock to really spark near-term real changes in the party.

    That is the thinking I expect from an expert on political science, something I very much am not.

    You are treating the GOP like a conventional political party and attributing normal political party behavior to it. The normal politicians of the GOP are never Trumpers now, and they have burned their bridges, no way they get welcomed back.

    The GOP is controlled by its voters who are mostly very cultish movements: QAnon, militias, Christian right etc. These voters don’t do normal politics.

    The GOP is on track to eventual oblivion – no way it jumps the track.

    3
  47. SKI says:

    @Jen, Kathy nailed it with this comment:

    But when has Trump not turned anything into a campaign event

    See: https://twitter.com/realDonaldTrump/status/1320933522601844738

    2
  48. KM says:

    @Kathy:

    if Biden names 4 or 6 Justices within his first two years, ti will be seen as a power grab.

    And?

    No seriously, and what?

    Why in the flying hell should we care if the GOP thinks it’s a power grab? ACB is a power grab. Trump got one so Biden gets one. Actually, Trump got 3 so Biden should get 3. They did it because they had the votes. We’ll have the votes. Honest to god, we need to pound their own logic back against them and not let them flip the script. If they call court packing a power grab, then we need to hammer that ACB being confirmed a WEEK before a contested election was the power grab we’re balancing out.

    We NEED to stop letting them define the terms. We’re playing by their rules and it’s not fair? F them. Biden should graciously offer ACB (Boof, too) the opportunity to resign their seats in order to prevent Congress from expanding the Court. After all, her power grab is the whole reason it’s happening so a good compromise is for her to do the right thing and patriotically fall on her sword. She won’t but it’s a good faith offer. If she and her party continue to insist she’s legitimate then Biden’s actions are as well. No bipartisan BS – either we’re doing it the old school way in which case ACB is illegitimate or your new “norms” so say hello to several new Dem Justices. There’s no way in hell a GOP would ever nominate a Dem to the SC so why the hell should we have to?

    8
  49. Scott says:

    @KM:

    Biden should graciously offer ACB (Boof, too) the opportunity to resign their seats in order to prevent Congress from expanding the Court.

    No reason the SC couldn’t be shrunk by 2 either with the last two confirmees’ having their positions eliminated. Just a thought.

    Then again, maybe the Senate will get into a situation where the SC just dies off with no replacements. Then we would have just two branches of government.

    2
  50. Kathy says:

    @KM:

    Why in the flying hell should we care if the GOP thinks it’s a power grab?

    We shouldn’t.

    But you have moderates in both parties, among the voters at any rate, and actual independents, whether they lean or not, and public perceptions and opinions.

    The GOP will claim a power grab no matter what Biden does. But they won’t be believed by as many people is Biden makes his power grab look like something else. Ideally he should get some GOP senators to play along (ideally cheesecake should make you lose wight, too).

    It may also be possible for the Biden reform to stick if the resulting Court appears more balanced.

    3
  51. Jen says:

    @Kathy:

    So, get Breyer’s replacement on the Court early,

    Yes. And if the Dems take the Senate, it should be the most liberal, yet qualified judge they can find, preferably right out of law school (okay that’s a slight exaggeration, but Barrett’s age and relative inexperience gets under my skin, so I want someone who will be on the court at least as long as she might be, looking her in the eye every dang day).

    It’d be nice if we could return to the pattern of a President getting the justices he or she wants when the same party has the Senate and Presidency, and then a moderate/compromise choice when they are of differing parties. That makes for a more balanced Court, with lots of different viewpoints. I can’t help but think that this current ideological makeup of the Court is going to be a disaster.

    Kavanaugh’s opinion on the WI ballot case was a hot, illogical mess. This is what we have to look forward to? Really?

    6
  52. Kathy says:

    @Jen:

    Well, if you want to kick McConnell in the nuts with a red-hot steel-toed boot, nominate Obama to the Court.

    But only if a Court expansion can be carried out to get in the younger justices as well.

    5
  53. gVOR08 says:

    @Kathy:

    It was the swearing-in ceremony, conducted by Justice Thomas.
    But when has Trump not turned anything into a campaign event?

    Someone on TV noted last night that Sotomayor and Kagan were sworn in at the Supreme Court Building.

    1
  54. Kathy says:

    @gVOR08:

    I guess Obama is too weak to grandstand like a proper feces-flinging alpha male monkey like Donnie.

    2
  55. SC_Birdflyte says:

    @KM: I had a thought similar to yours. After election day, Biden should have his Attorney General (I think Doug Jones would be a good choice) drop in for a one-to-one chat with John Roberts. “Mr. Chief Justice, next week the President will propose adding four more justices to the Supreme Court. We have the votes to make it happen, unless something else happens. If you agree, we will have Justice Breyer retire. All you have to do is persuade Justices Thomas, Kavanaugh, and Barrett to retire as well. Deal?”

    4
  56. Just Another Ex-Republican says:

    Kavanaugh’s opinion may be a hot mess from our point of view, but the vote was 5-3. ACB doesn’t even change the calculus.

    And while I mostly agree with Steven Taylor, I am not so sure Garland would have been rejected had there been a vote. I saw a plausible argument today that part of the reason he prevented the vote entirely was so people wouldn’t see what an eminently reasonable selection Garland was, nor would individual Senators be placed under pressure to confirm because of “norms” or anything else. Actual rejection of a SC nominee is extremely rare and if he was sure he had the votes to stop Garland, why wouldn’t he have allowed the nomination to proceed?

    Gotta admit the Wisconsin decision this morning shook me pretty bad. Hard to believe that a coming onslaught of lawsuits around the election means there is a non-zero chance that our Constitutional Republic not only dies, but commits suicide, as the SC signs off on basically allowing politicians to choose their voters and which votes count in the name of partisanship. Still think/hope it’s not LIKELY to happen that way, but there should be zero chance it does.

    6
  57. Jen says:

    @Just Another Ex-Republican:

    part of the reason he prevented the vote entirely was so people wouldn’t see what an eminently reasonable selection Garland was

    Well, yes exactly. McConnell knew that Garland was not just qualified, but moderate and reasonable. He stalled because he gambled that there was a chance to keep the seat open and have it filled by a conservative rather than a moderate. McConnell knew full well that if Garland had come to a vote, there wouldn’t have been any choice but to approve. This “Garland would have lost the vote” is nonsensical–they just didn’t want the seat to flip (from Scalia, a conservative, to Garland, a moderate).

    This is exactly why rushing through Barrett was so galling–it flipped the seat from a liberal (RBG) to conservative.

    2
  58. Pylon says:

    @Kathy: “It was the swearing-in ceremony, conducted by Justice Thomas.”

    Actually, Coney Barrett was officially sworn in today, at the court, by Roberts. That other thing was just for show.

    6
  59. Kathy says:

    @Just Another Ex-Republican:

    And while I mostly agree with Steven Taylor, I am not so sure Garland would have been rejected had there been a vote.

    Probably not, but it doesn’t matter.

    If Mitch was going to steal the seat, he couldn’t allow a vote. Suppose Garland had been rejected. On what basis could he then trot out the “let the people decide” pretext and expect to get away with it? No. If Garland had been rejected, Obama would nominate someone else.

    The point wasn’t to keep Garland off the bench. It was to keep Obama from seating a Justice, so the GOP might do so the next year.

    It was a bad bet, but even bad bets sometimes pay of.

    3
  60. Just nutha ignint cracker says:

    @Steven L. Taylor: I’ll disagree. The second (and maybe the third) is a crime. The balance are acts of war or policy that have been whitewashed over for generations. Might makes right. It’s the American Way.

  61. Just nutha ignint cracker says:

    I have long stressed education (which, I suppose, could be reframed as changing the culture) in the sense that I think that there is a fundamental lack of understanding, regardless of partisan or ideological positioning, of what our institutions actually produce. There is a tendency, across the spectrum, to believe in the American myths.

    That seems like a pretty heavy lift for education. First, the people corrupting the institutions know exactly what they are doing, and second, like their constituents,— DGAF about the problems it’s causing as long as they get to rule over the carnage.

    It’s entirely possible that we’re simply papering over a long-standing problem yet again. Is it possible that “the Union” wasn’t then and isn’t now worth saving? Still for the time being, the Democrats are going to have to strike while the iron is hot. If Biden’s goal is to operate a “caretaker” government, the game may be over before it even starts.

  62. DrDaveT says:

    @Steven L. Taylor:

    To go back to the the original post:
    They had the votes, so they did it.
    Is not the same category as:
    I had a gun, so I took it.

    That depends entirely on why they had the votes. If, for instance, they had taken the votes at gunpoint, then it’s very much the same category. You need an extra hypothesis — namely, that they held the votes for sufficiently untainted reasons.

  63. Just nutha ignint cracker says:

    @SC_Birdflyte: And if I am Chief Justice Roberts, why do I make a deal based on the proposition that a guy who’s going to shuffle off this mortal coil sooner rather than later will resign now?

    For the “carrot and stick” to work, you have to use an actual carrot. A paper mache carrot won’t work.-

    2
  64. @DrDaveT: Well, it is known that I am not in the least critical of why they have the votes in the first place 😉

    1
  65. JohnSF says:

    @Steven L. Taylor:
    A thing can happen in the context of a constitutionally created system and be a crime.
    (Or worse: a mistake)
    Depending on your categorization of “crime”.
    Is a crime simply something that is against the legal code in force at the time?
    Or is a crime something more fundamental and universal?

    If just the current legal code; well, toss another baby on the shrine of Moloch, and lets stroll down to the gladiatorial games.

    If it’s some “universal code” then what? Much of our human ancestry can be condemned as nasty people doing nasty things (to each other).

    An absolute judgement is difficult either way.

    It’s a bit like the “conservative” argumentation re. moral standards:
    Moral relativism is wicked! There is right and wrong!
    *opponent points at past figure doing something wrong*
    Look, you can’t judge them by today’s standards, historical context blah blah….

    But, as I say: it’s a MISTAKE.
    If you trample over bounds of unwritten rules and conventions, it boots little to bleat like a poor little innocent when payback comes around being a bitch.
    UK government is currently doing this, cheered on by “conservative” activists (actually largely exUKIP infiltrators plus the liberToryian “mad media”/lobbyist networks).
    My word how the fools will squeal if/when the Labour Party crash through the conventions in their turn.
    Listen to Thomas More.

  66. JohnSF says:

    (Dratted LACK OF EDIT!!!)
    But extend More’s argument from law alone to custom, convention, unwritten rules.
    A lot of the time they are bigger than the formal law.

  67. JohnSF says:

    @charon:
    Yes, this the dead end they are jamming themselves into with Trump.
    To survive, they need to expand to voters currently outside their base.
    But whenever they attempt that, it will cause a part of that base (perhaps only a very small part, but influential enough) to erupt on whatever topic.
    Taxation.
    Health insurance systems.
    CO2 mitigation.
    Immigration and regularising undocumented residents.
    etc etc

    Perhaps it is even worse: the “possible recruitables” fall into camps that are mutually divergent; those with economic issues (upsets the libertarians, the corporates) those with “cultural” issues etc.

    Compared to other countries where “conservatism” has modernised, the US problem is that:
    a large portion of its “conservative” heritage is cleaving to a set of fundamentalist market means that are incompatible with the willed ends,
    plus evangelicalism that seems to be responding to the challenge of modernity by embracing a craziness feedback loop,
    plus the racism.

  68. Jim Brown 32 says:

    @Steven L. Taylor: I don’t believe so–I monitor lots of Right Wing media. I cannot understate this– THESE PEOPLE BELIEVE DEMOCRATS ARE DOMESTIC ENEMIES OF THE UNITED STATES. They are not in a policy fight with democrats–they are fighting democrats. Period. This doesn’t end after one election.

    Granted, Trump has shrank the Party–but what’s left is going to be problem for years to come. Frankly, the only way ( I can think of) to neutralize them will be convince the Billionaire funders of the GOP that this new nativist base is dead weight.

    4
  69. Ken_L says:

    My recollection of 2016 is that McConnell refused to give Garland a hearing because he believed some of his colleagues would break ranks and vote to confirm. This was, remember, at a time when virtually everyone expected Hillary to be elected. Some on the right believed it would be better to accept Garland than to risk Hillary appointing a very liberal justice. Hardliners like Cruz vowed to oppose any nomination by Hillary no matter who it was, but he didn’t speak for the majority. I imagine he would do so today.

    1
  70. @JohnSF: I think everyone is missing my point, and at this point it is likely unproductive to explain myself in some other way.

    I understand what you all are saying. I am not saying that legal always means good or moral. I am not saying that this wasn’t a power play (indeed, I say so in the OP).

    Let me just part with:

    1. If you are going to equate this to a gun to the head, be prepared for the same argument if Dems expand the court.
    2. The problem is not the vote itself, as it is within the scope of the existing rules, the problem is the rules themselves, and if we get all up in arms about the vote we are focusing on the wrong problem.
    3. The solution isn’t getting less hypocritical or power-hungry politicians. The solution is a better set of rules.

  71. Put another way: instead of bemoaning the hypocrisy and/or power-play aspect of this, I think it better to acknowledge there was nothing about the move that was outside the constitutional structure. Thus, the remedy is to address that structure, which should, in my opinion, include court expansion, which is also within the scope of the constitution.

    Don’t make the argument about norms, because then the argument about expansion will be about norms.

    If the Reps want to say “we had the votes” then let that be the basis for Dems restoring some balance.

    To deploy a cliche: fight fire with fire.

    1
  72. I will add: I am not suggesting as much that there has to be a dichotomous discussion (i.e., rules v. values). I just think that a lot of the responses to me were dismissive of the point I am trying to make/didn’t get it.

    And yes, I said I wasn’t going to further explain 🙂

  73. JohnSF says:

    @Steven L. Taylor:
    I don’t equate it to a “gun to the head” situation.
    Manipulating or even bending the rules to achieve an object is not the same as outright coercive force.
    But a lot of the what makes institutions function is not written down or if they are, in rather imprecisely.

    A wholly rule-constrained system would probably end up unworkable. (Not to mention difficult to achieve in the US context).
    Flexibility is needed, and the space for flexibility requires fuzziness in the rules, but that fuzziness has to be exploited with care and self-restraint.

    Violating norms or customs can always be excused by saying: “We have committed no crime. We have broken no rules. Show me where it is written that what we have done was wrong. It may have been a convention, but times change.”
    But the only only thing left that can restrain your opponent is their calculation that violating custom may be politically inexpedient, or that they still desire to reconstruct a norm-bounded system.
    If they decide otherwise, any protests come across as self-serving and hypocritical.

    That, I think, is your argument that the opponent may “fight fire with fire”? True.
    But if you burn down the house, you are both left squatting in the ashes.

    Joseph Fouche: “It’s worse than a crime. It’s a mistake.”

    1