US Politics: 50 shades of Scalia

[alguien]

I was a bit shocked at McConnell's "only NRA approved" qualification for considering a candidate.  Really? You'll only nominate the candidate approved by a lobby? What happened to "the people deserve a choice?"

I understand there's money in politics, but FFS, at least make an attempt at pretending you're representing your constituency. 

[Swordfish]

11 minutes ago, lokisnow said:

People need to understand that a Supreme Court APPOINTMENT is the same as all other APPOINTMENTS

Thus, if we create a rule for which there is an acceptable time limit forcing the senate to act, that rule has to apply to all other appointments. This is a pretty good idea, but we cannot have all this outrage over the Senate doing nothing--which is a routine Senate practice in regards to appointments the senate does not like--unless we are going to reform the process for everything.How the Senate is acting regarding Garland is how the Senate routinely acts towards all other appointments.

 

And the constitution does explicitly give the senate the ability to set its own rules and procedures.  So here we are...

 

Quote

 

Swordfish, I understand your point regarding judicial vacancies, however there is a difference there. This difference is in regards to Senate norms as they are practiced with respect to judicial vacancies, like the filibuster and committee hearings, these norms are obviously merely senate rules or patterns of behavior, they are not strictly within the constitution and perhaps are sometimes not even codified as explicit rules within the Senate. Obama--and any president--leaving those judicial vacancies open without an appointment is not an abdication of his constitutional duty because the Senate norms have traditionally reserved those judicial appointments to be subject to an additional layer of advise and consent. Normally, the Senators representing a state affected by the vacancy must recommend to the president judges as possible selections for that vacancy. Pre advise and pre consent, I suppose. The president then makes a nomination back to the senate and they engage in their typical advise and consent procedures. The president is free to nominate whoever he wants and without pre-authorization by the Senate, but that would be a massive violation of norms and the Senate would regard it as a huge encroachment on their authority. So Obama not nominating judges to some vacancies is an attempt by him, and other presidents, to preserve the normal operational functioning of the judicial process. Unfortunately this process is obviously a terrible method as it results in these sorts of enormous multi-year vacancies, but I don't think it's an abdication of duty to abide by the norms that keep government functioning.

Oh i agree.  I DON't think the president has abdicated his constitutional duty there, for many of the same reasons I don't think the senate has.

And there's an interesting wrinkle in the stated position of the administration on what the word 'shall' means in the constitution as it pertains to Article two and enforcement of laws, and the ability to selectively enforce them.  Which makes it even more obvious that the administration knows there is no constitutional issue here.

 

[lokisnow]

9 minutes ago, Swordfish said:

And the constitution does explicitly give the senate the ability to set its own rules and procedures.  So here we are...

 

Oh i agree.  I DON't think the president has abdicated his constitutional duty there.

And there's an interesting wrinkle in the stated position of the administration on what the word 'shall' means in the constitution as it pertains to Article two and enforcement of laws, and the ability to selectively enforce them.  Which makes it even more obvious that the administration knows there is no constitutional issue here.

 

Yes, of course there is absolutely not a constitutional issue in delaying procedures for Garland. This is routine Senate practice. Routine business. All actions made by McConnell are completely normal. And completely within the rules.

The outrage and blustering is thoroughly absurd. This is the way the game is conducted. This is the way I would want a democrat majority to respond to a 2008 nomination by  GWB to the supreme court.

[Maithanet]

5 minutes ago, Swordfish said:

Oh i agree.  I DON't think the president has abdicated his constitutional duty there, for many of the same reasons I don't think the senate has.

 

Swordfish, out of curiosity, what would be your opinion of the hypothetical where Clinton wins the election, and the Senate still will not approve or consider any of her nominees?  Would that rise to the level of neglecting their constitutional duties? 

[lokisnow]

This is more local politics, but this whole ginned up "issue" has been making me laugh and now it's done, so good.

Basically, a nonprofit AIDS foundation, operating on the 21st story of a highrise does not want a pair of towers built next door because highrises are "out of character with the neighborhood" and highrises are unacceptably dense, and blah blah blah.

It's always nice to see these "Keep rents high, and make rents higher!" crowd like this AIDS foundation, lose.

http://www.latimes.com/local/lanow/la-me-ln-palladium-vote-20160322-story.html

[TrackerNeil]

2 hours ago, Swordfish said:

So you are just not gonna comment on whether the vacancies for which there are no nominees is an abdication by the president of his constitutional duty?

Color me shocked.

I already addressed that upthread, so I think I'll just color you inattentive, Loretta.

[Swordfish]

2 hours ago, Maithanet said:

Swordfish, out of curiosity, what would be your opinion of the hypothetical where Clinton wins the election, and the Senate still will not approve or consider any of her nominees?  Would that rise to the level of neglecting their constitutional duties? 

 

No.  Because, as I've said, i do not think there IS a constitutional duty for the senate to hold a hearing, or even a vote.

Getting back to the judicial nominee question, there's a vacancy that has been without a nominee since 2005, FFS.  

So I'll ask you the question that TN has been dodging for days, do you think the president is neglecting his constitutional duty to nominate here?

 

54 minutes ago, TrackerNeil said:

I already addressed that upthread, so I think I'll just color you inattentive, Loretta.

More syrup, please?

[Mr. Chatywin et al.]

2 hours ago, alguien said:

I was a bit shocked at McConnell's "only NRA approved" qualification for considering a candidate.  Really? You'll only nominate the candidate approved by a lobby? What happened to "the people deserve a choice?"

I understand there's money in politics, but FFS, at least make an attempt at pretending you're representing your constituency. 

It's not shocking at all that he thinks that way. What's shocking is that he says these things in public. If we had an electorate that paid better attention I think most people would blame McConnell for Washington's ails.

But then again, most Republicans (not elected officials) hate him.

 

[lokisnow]

30 minutes ago, Swordfish said:

 

Getting back to the judicial nominee question, there's a vacancy that has been without a nominee since 2005, FFS.  

 

interesting wrinkle here, given a senator has to pre-advise and pre-consent to a list of acceptable names to that vacancy, if Obama did unilaterally skip the courtesy of waiting for names for that vacancy would he be able to find a judge willing to accept his appointment?

If Obama unilaterally skipped that step, would any judge agree to the appointment given the massive violation of senate norms and major assertion of executive authority in an area usually left to the legislative?

I think if Obama did say, "hey a 11 year vacancy is ridiculous, I'm appoint Judge Jane Doe to that seat" that Jane Doe would turn him down every time, because no judge will want to be the human shield for the senate firing squad about to be directed at both Jane Doe and Obama.

So whether or not it is an abdication of Obama's constitutional duty to defer to the Senate's non-constitutional norm of pre-advise/pre-consent lists of judges, it is a moot point because no judges are likely to consent to be nominated if the context is being the first to violate these long-standing norms.

So, given that Senate has the first move on judicial vacancies, an 11 year old vacancy is caused by the Senator(s) in question who are supposed to submit names for that vacancy, ergo they are responsible for that vacancy existing for that length of time.

 

[Swordfish]

10 minutes ago, Tywin et al. said:

It's not shocking at all that he thinks that way. What's shocking is that he says these things in public. If we had an electorate that paid better attention I think most people would blame McConnell for Washington's ails.

But then again, most Republicans (not elected officials) hate him.

 

Specifically, in case anyone cares, this is what he actually said: ( he says nothing about 'considering', and is specifically talking about the chances of approving Garland in a lame duck session, and it seems to me he's talking specifically about the chances of republicans approving.

not that anyone really cares about accuracy anymore.

 

Quote

“I can’t imagine that a Republican majority in the United States Senate would want to confirm in a lame duck session a nominee opposed by the National Rifle Association, the National Federation of Independent Business that represents small businesses that have never taken a position on the Supreme Court appointment before. They’re opposed to this guy,” McConnell said.

 

Here's the video:

 

[Swordfish]

9 minutes ago, lokisnow said:

interesting wrinkle here, given a senator has to pre-advise and pre-consent to a list of acceptable names to that vacancy, if Obama did unilaterally skip the courtesy of waiting for names for that vacancy would he be able to find a judge willing to accept his appointment?

Is this explicitly spelled out in the rules of the senate?  Or is this just the way it's always been done?  I'm honestly not sure, and a quick google search couldn't really spell it out for me.

i get your point though.  And it's worth repeating, I don't think, constitutionally there is an issue with the missing nominations.

 

Quote

If Obama unilaterally skipped that step, would any judge agree to the appointment given the massive violation of senate norms and major assertion of executive authority in an area usually left to the legislative?

I think if Obama did say, "hey a 11 year vacancy is ridiculous, I'm appoint Judge Jane Doe to that seat" that Jane Doe would turn him down every time, because no judge will want to be the human shield for the senate firing squad about to be directed at both Jane Doe and Obama.

So whether or not it is an abdication of Obama's constitutional duty to defer to the Senate's non-constitutional norm of pre-advise/pre-consent lists of judges, it is a moot point because no judges are likely to consent to be nominated if the context is being the first to violate these long-standing norms.

So, given that Senate has the first move on judicial vacancies, an 11 year old vacancy is caused by the Senator(s) in question who are supposed to submit names for that vacancy, ergo they are responsible for that vacancy existing for that length of time.

 

Sure. I agree with you.  But now we are back to talking about politics, and not constitutionally required duties.

 

[lokisnow]

It's actually sort of exciting, there are a ton of stupid rules and traditions within the senate regarding their special privilege WRT judicial appointments, I'd love to see their obstructionism on Garland lead to a major reform of most of these rules and traditions being discarded. Some of the reason that you have an eleven year vacancy is not because that one vacancy will tilt the balance of the court, but because an individual senator just does not really care about the judiciary, and cannot be arsed to bother about the vacancy, or that senator may be making a molehill into a mountain by saying "in leaving a seat vacant we prove the judicary--and therefore the government--is too big so I, individually will commit to making the government smaller by taking no action on this vacancy."  The whole process is profoundly absurd. Obstructionism on the DC court led to nuking the filibuster on judicial nominations except for the supreme court, I'd love to see secret holds, blue slips and the filibuster on supreme court judges be eliminated, and if the price we have to pay for that is obstructionism on Garland it will have been worth it.

Partly why we haven't been able to expand the judiciary is that the senate has kept very high levels of vacancies with their stupid non-constitutional rules making confirmation so arduous, and the party wishing to expand the judiciary has a very weak argument if they cannot even fill the seats currently vacant in the judiciary. So a nice side effect of reform of the appointment process might be movement to expand the judiciary will finally gain traction.

Since only 15 confirmations were made since January 2015, we are now up to 85 judicial vacancies, by the way. This obstruction is far more serious than the Garland obstruction that is garnering so much attention.

 

[alguien]

46 minutes ago, Swordfish said:

Specifically, in case anyone cares, this is what he actually said: ( he says nothing about 'considering', and is specifically talking about the chances of approving Garland in a lame duck session, and it seems to me he's talking specifically about the chances of republicans approving.

not that anyone really cares about accuracy anymore.

I get what he's trying to say (ETA: that he's speaking in hypotheticals), but casually mentioning lobby approval as a metric in voting for a nominee (along with the unsaid implication that only lobby-approved candidates would be voted through) just leaves a bad taste in my mouth. (to say nothing of the specific lobbies in question )

I mean, we all know what the puppet pursestrings are attached to, but man, McConnell, you don't have to pay homage to your masters so blatantly. 

[lokisnow]

Just to reiterate, McConnell has said there will be no lame duck confirmation of Garland:

http://www.cnn.com/2016/03/20/politics/mitch-mcconnell-supreme-court-donald-trump/

 

[The Marquis de Leech]

7 hours ago, Swordfish said:

No.  Because, as I've said, i do not think there IS a constitutional duty for the senate to hold a hearing, or even a vote.

OK. Let's take this to its logical extreme.

Let's suppose that the Senate not only refuses to consider a Clinton nominee, but all existing judges (both in the Supreme Court, and in the relevant lower courts) either resign or die at some point in the next eight years. You have no judges left now. Would the Senate still be justified in refusing to hold hearings?

The constitution clearly envisages the US having a Supreme Court and a functioning justice system. That is clear intent according to the framers. For the Senate to essentially abolish courts via neglect would be a violation of that.

[Seli]

6 hours ago, lokisnow said:

Just to reiterate, McConnell has said there will be no lame duck confirmation of Garland:

http://www.cnn.com/2016/03/20/politics/mitch-mcconnell-supreme-court-donald-trump/

 

Doesn't the lame duck period technically start after the elections? So he should still have half a year to confirm if he was honest.

[lokisnow]

3 minutes ago, Seli said:

Doesn't the lame duck period technically start after the elections? So he should still have half a year to confirm if he was honest.

Lame duck starts after the election and ends January 3 when the legislature is sworn in, so about a two month period. Really about five weeks when you factor in breaks for Christmas and thanksgiving. And since the legislature only works for three days a week, only about fifteen days of work for the lame duck.

[TrackerNeil]

5 hours ago, Roose Boltons Pet Leech said:

OK. Let's take this to its logical extreme.

Let's suppose that the Senate not only refuses to consider a Clinton nominee, but all existing judges (both in the Supreme Court, and in the relevant lower courts) either resign or die at some point in the next eight years. You have no judges left now. Would the Senate still be justified in refusing to hold hearings?

The constitution clearly envisages the US having a Supreme Court and a functioning justice system. That is clear intent according to the framers. For the Senate to essentially abolish courts via neglect would be a violation of that.

Roose, I tried this myself, and got the line "the constitution does not set any time constraints on confirmation hearings." Apparently, that means it is perfectly in line with the spirit of our founding document that we have no federal courts at all, simply because the party controlling the Senate is throwing a tantrum. 

[Ser Scot A Ellison]

Tracker,

In fairness Swordfish pointed out a number of vacancies that exist in the lower federal courts that exist and have existed for years because there have been no nominations made for those vacancies asking if the President should be penalized for failing to do his Constitutionally prescribed duty to make those nominations?  It is a fair comparison.  

Ultimately, the same problem exists for both situations.  There is no rememdy, other than political that exists to force the President to nominate or to force the Senate to give a nominee and up and down vote for confirmation.

[The Marquis de Leech]

1 hour ago, TrackerNeil said:

Roose, I tried this myself, and got the line "the constitution does not set any time constraints on confirmation hearings." Apparently, that means it is perfectly in line with the spirit of our founding document that we have no federal courts at all, simply because the party controlling the Senate is throwing a tantrum. 

Actually, it then gets curious.

If a Supreme Court has no judges, it can't throw out laws as unconstitutional. The US then has an unenforceable constitution...