Voice of the Senate

I discovered that in August 1960, the Democrat-controlled Senate passed a resolution, S.RES. 334, “Expressing the sense of the Senate that the president should not make recess appointments to the Supreme Court, except to prevent or end a breakdown in the administration of the Court’s business.”  Each of President Eisenhower’s SCOTUS appointments had initially been a recess appointment who was later confirmed by the Senate, and the Democrats were apparently concerned that Ike would try to fill any last-minute vacancy that might arise with a recess appointment. Not surprisingly, the Republicans objected, insisting that the Court should have a full complement of Justices at all times. Of course, the partisan arguments will be exactly the opposite  –David Bernstein

 

Barely an hour after the news broke Saturday of the death of Supreme Court Justice Antonin Scalia, Senate Majority Leader Mitch McConnell (R-Ky.) made it clear that he has no intention of letting President Barack Obama replace the conservative icon.

“The American people? should have a voice in the selection of their next Supreme Court Justice,” McConnell said in a statement. “Therefore, this vacancy should not be filled until we have a new President.”

Obama said he plans to name a nominee, but McConnell and other Republicans want to punt the issue to the next president because there’s a chance that person will be a Republican, in which case the GOP will get a lifetime appointee they actually want. If McConnell plans to spend the next year blocking every potential Supreme Court nominee that Obama puts forward, it would be a major break from tradition — since 1975, the average number of days from the nomination of a Supreme Court justice to a final Senate vote is 67, per a Congressional Research Service report.

It would also represent a break with McConnell’s personal history: In 1988, he voted to confirm a Supreme Court nominee when it was a Republican president’s final year in office – Jennifer Bendery

55 years is a long time and political memories are short.  Obama is going to nominate someone, and the Senate is going to reject.  The media, on both sides, will demagogue. Partisan rancor will get stronger, one side will win. And almost half of the country will get angrier.

Rinse, repeat.

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60 thoughts on “Voice of the Senate

  1. Ahh sweet BSDI where would commentary be without it. Just reading the first quote, without any other knowledge, the D’s confirmed his appointments. They didn’t say “just don’t bother nominating anyone” or “NONE SHALL PASS”. And of course the February ain’t exactly “last minute”. But the desire for BSDI is strong.

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    • If the question is, “who uses SCOTUS as a political football” the answer is BDSI.

      If the question is, “who will reject an obviously qualified nominee because of partisan rancor,” not even the Borking of Robert Bork was that. Ted Kennedy Borked Bork because he found Bork ideologically repugnant, not because he was pissed off that a Republican was in the White House.

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      • Exactly. There’s a huge difference between the Senate trying to influence the choice of nominee (either in terms of ideology a la bork or competence a la Myers), and trying to deprive the President of his constitutional prerogative to nominate a justice of his choice. In order for the behavior of the Dems to be equivalent to McConnell’s line, they’d have to have refused to confirm Kennedy as well. Notably, Samuel Alito did not get 60 votes in favor of his confirmation, but Senate Democrats refrained from attempting to filibuster.

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      • And, not to put too fine a point on it…Bork got a vote. That was never in doubt. He just lost it. He wasn’t filibustered, his nomination wasn’t lost in committee, he lost a straight-up majority vote. Where members of the President’s own party, IIRC, voted against him.

        People screaming about Bork seem to have odd ideas about what happened, given what they use his name to justify.

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  2. August is not February, and a recess appointment is not an appointment that has, as of now, a full 11 months to be processed. But that’s the level of honesty I’d expect from David Bernstein.

    And 1988 was only 10 years ago (28? Really? That can’t be right), so it’s pretty telling that Ted Cruz thought he could get away with lying about it,

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  3. Just a quick perusal of the standard rightwing outlets shows that they’re barely trying with the “80 years of tradition” stuff.
    Instead they are just full on revolutionary “by any means necessary”, where anything they do to obstruct is legitimate, and anything Obama does is illegitimate.

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    • I was perversely impressed by Donald Trump’s answer at the debate when asked what he would do if he was president and a supreme court vacancy opened up in February of his last year in office. It was a completely straightforward “I would get a replacement confirmed if I was in Obama’s shoes, but Obama is bad so I will do everything I can to prevent Obama from getting a replacement confirmed.” A normal politician might make some lame attempt to provide a justification, but not Donald Trump.

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  4. The media, on both sides, will demagogue. Partisan rancor will get stronger, one side will win. And almost half of the country will get angrier. Rinse, repeat.

    What’s the solution? Eliminate the two party system? Eliminate government? Eliminate the media?

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  5. I’m curious if people agree with Jon Chait’s prediction that this is part of the gradual erosion of courtesy/slack in the DC system. And, in particular, how the system will self-correct. Will there be a tightening up of the norms so it’s very obvious what each branch has to do and when, or will there be increased brinksmanship (ex: “we refuse to vote on any nominees until Obama stands trial for treason”, to which Obama threatens issue a self-pardon and pack the court, etc etc.).

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    • Something in the political system is broken, but I’m not sure it’s courtesy. It’s easier for me to critique the GOP than the Dems on this, but if you think about it, Bill Clinton was a pretty Bush I type centrist poltician, but ever since then the GOP has gone into nuclear mode wrt anything Democrat, and whether that manifests as the absence of courtesy or an adherence to principles!! doesn’t really matter: the GOP thinks it’s in their best interests to move further and further to the right. (Dems are harder to for me to critique because it seems to me that the Democratic party has been willing to compromise with the GOP during the Bush years, and even to some extent during the Obama years.) In my view, they’ve gone a wee bit f***ing crazy.

      My own theory on is that the GOP has internalized a mythology which was once clearly invoked outa political expediency, and as a result has increasingly backed itself into tight corners which require opposing any and everything Dem originated irrespective of merit (Cleek’s Law!). On the flip side, Trump, of course, is gaining support precisely by rejecting not only the mythology but the political commitments that follow from it.

      That’s one reason I’m supporting Trump in this election, actually. From my pov (and I ain’t a conservative, so fwiw) the GOP really needs to get its head outa its ass and start thinking less ideologically, and more pragmatically and practically.

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      • Since what we are seeing is the overthrow of the GOP party elites with the mob of the base, its fair to say that Trump represents the GOP better than anyone.

        I’m of the camp that sees the conservative base as a revolutionary party, one that refuses to accept the legitimacy of the opposition.
        They really do have this “By any means necessary” fervor.

        When they say stuff about FEMA camps and gun confiscation, when they say that Obama is actively trying to destroy America, it isn’t just the fringe anymore- The most powerful part of them really does think that the Democratic Party is fundamentally illegitimate, and no tactic is illegitimate against them.

        In 2008, when that woman said Obama was a Muslim, their standard bearer, McCain was able to temper them and offer modest words about him being a good man.

        Those days are long, long, gone.

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      • That makes a lot of sense. I think it’s not too surprising that a generation of politicians inspired by “government *is* the problem” are either going to be power-hungry sociopaths or nihilists. I’m less convinced by the argument that things are self-correcting though based on – for example – the monotonic increase in filibusters. I guess gov’t shutdown is going out of vogue, but that was entirely a practical decision not one based on new laws or a sudden respect for decorum. It seems to me like the electorate is mostly divided into people who could care less about parliamentary tricks, and people who could care less as long as their guy’s doing it. That seems like a recipe for gridlock, which bothers me because gridlock obviously favors one of the parties.

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    • It’s self correcting, if such a correction is needed, by November. The GOP is defending a lot more territory in the Senate this year – even before a SCOTUS vacancy in the mix, there was a 50/50 chance of Dems taking back control.

      The shutdown stuff didn’t have much effect, it turns out, but that’s because it was no longer a live issue on election day. A live issue of dysfunction – in a Presidential year, no less – is a different matter.

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    • The biggest problem is that basically, a lot of the current political system depended on people not being rewarded for being assholes. Now, thanks to the change in the midterm electorate, it is in the best interest of almost every Republican running for reelection to be an asshole to the liberals, as much as he or she can be, to appease the base so much that basic things that just got done even if it made nobody happy still got done because hey, the government has to work a little, even if you don’t care of it too much like a Goldwater no longer get done or take a Herculean effort.

      Actual polling bares this out – Democrat’s are much more friendlier to compromise in general.

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    • I’d say that it’s one more example of US political parties (with the Republicans leading the charge and the Dems in varying levels of close pursuit) acting more and more like parliamentary parties in a system built around shared power and dealmaking. I was blathering about this on the internet six years ago, and I think that my past self would feel pretty smug about how the last 24 hours have played out.

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  6. Uh, wait a second.

    I discovered that in August 1960, the Democrat-controlled Senate passed a resolution, S.RES. 334, “Expressing the sense of the Senate that the president should not make recess appointments to the Supreme Court, except to prevent or end a breakdown in the administration of the Court’s business.”

    That link says that 52 Democrats voted against it, and none for it, and 33 Republicans voted for it and none against it.

    Unless my math is horribly wrong, that, uh, does not appear to have passed. (Oddly enough, it doesn’t *say* it did or didn’t pass, but if 52 people in the Senate voted against something, I’m pretty sure it failed.) And it also does not seem to be something the *Democrats* are supporting.

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    • The votes against might have been a weird Senate rule thing, wherein votes against count as votes for because the actual “vote” was like a vote to table it, otherwise it would pass or some such.

      There’s the occasional weird parliamentary quirk there.

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      • If you just follow the link, the first sentence is “This vote was to kill a nonbinding resolution…” (emphasis mine). So, yes, 33-52 and the motion to kill the resolution fails. This doesn’t even count as weird parliamentary proceedings — the process has any number of places where motions to change outcomes can happen. Well, maybe they seem weird from the outside. Three sessions as part of a state legislative staff may have permanently warped by judgement on such things.

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    • notme, the problem is this:

      It is perfectly fine for a the Senate to reject a nominee. They are *supposed* to do that.

      Hell, I don’t actually have a problem with a fillibuster, because I really don’t have a problem with a 60-vote threshold for that *specific* job. If the fillibuster is being used against a *specific* *person*, as opposed to being used against the idea of the president nominated anyone.

      noteme, here is what are currently taking issue with: The idea that, if the Senate is held by the opposite party then the president, the Senate should run out the clock until the next president.

      Here, it’s 11 months, but there doesn’t seem to be any logical upper bounds on this. Two years? Three years?

      And then we hit four years, ‘Let’s wait until the next president’ and it’s game over. From then on, we don’t get anyone else appointed to the Supreme Court unless Congress has a fillbuster-proof majority of the same party as the president. Which could be a *decade* or more.

      No one is saying there’s no *bottom* limit, there clearly is one somewhere. If a Supreme Court Justice dies after the election, but before the new president takes office, and the lame duck president tries to ram someone through…okay, I can kinda see the argument there. I don’t agree, but I see the argument.

      But this is *11 months*. And the *current* president is supposed to be able to select the next Supreme. The Senate is supposed to object *to specific people*, not to his right to do that at all!

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    • Oh, and, BTW, Miguel Estrada was *exactly* the sort of person who should have been fillibustered, as part of Bush’s ‘Nominating Federal judges with absolutely no judicial experience or record’ operation and the Republican’s apparent willingness to go along with it.

      And if Obama nominates someone without any record, I fully expect the Senate to block *them*. In fact, I really hope the *Democrats* don’t go along with that.

      Just like, to their credit, the Republicans refused to go along with Harriet Miers…but she was actually unqualified for the position (Whereas Estrada was just a complete unknown.), so that’s damning Republicans with faint praise.

      But, like I said, disapproving of a specific person is entirely different than basically announcing ‘We are not going to confirm anyone that Obama nominates’.

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  7. It will be spectacular to see, this conflict. Obama clearly will nominate someone and knowing him it’ll be someone who’s pretty unimpeachable. Then we’ll have to see if the GOP Senate refusing to consider anyone has an impact on the polls. If it does I expect Senator Turtle to fold. If it doesn’t then the court will be eight people until the new President comes along and things are going to get a lot worse.

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