Tuesday, February 16, 2016


On Saturday at the Volokh Conspiracy blog, which is now at The Washington Post, David Bernstein wrote this:
Thanks to a Volokh Conspiracy commenter, 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 Supreme Court 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 this time.
Bernstein's link doesn't provide the complete text of the resolution, but -- as he makes clear -- the resolution wasn't intended to shut down the normal approval process for a Supreme Court pick made late in Eisenhower's term -- it was meant to head off a recess appointment, which would place the pick on the Court automatically, before Senate vetting could even begin. (The Obama administration has ruled out the use of a recess appointment to fill the current Court vacancy.)

The complete text of the 1960 resolution is here. Please note that it explicitly demands that High Court nominees go through the prescribed approval process. It's not a call to prevent the filling of any vacancy in an election year:

But certain right-wingers want to bamboozle you into believing that Senate Democrats in 1960 wanted to shut down the process altogether. Here's Townhall political editor and Fox News contributor Guy Benson:

A post at the American Thinker also refers to election-year appointments, not recess appointments:

Elsewhere, we read at Freedom Outpost that these two situations are essentially identical -- that "the shoe is on the other foot." Same thing at Victory Girls Blog: There we're told that the 1960 resolution "speaks to the determination by the Democrats of the day to not let a Republican president have yet another chance to appoint a Supreme Court justice."

All this even seems to confuse someone who writes for The Christian Science Monitor and is a fellow at Georgetown's Government Affairs Institute:

Note the wording of the 1960 Senate resolution: "one of the solemn constitutional tasks enjoined upon the Senate is to give or withhold its advice with regard to nominations made to the Supreme Court of the United States." Senate Republicans now don't even want to allow the approval process to take place; Senate Democrats then explicitly demanded that the process go forward. But a few right-wingers are trying to fool you into thinking that Democrats then wanted the same thing Republicans want now.


Feud Turgidson said...

In an interview with a reporter for NY magazine in September 2013, Scalia said the only dailies he & his wife read were the WSJ & the Moonie Times, as they found reading the NYT and even WaPo upset them.

That got me thinking on how Drudge works: one page, the top half nothing but headlines & part ledes. If one clicks on those, OFTEN how Drudge put it doesn't fit the article his page links to. And that got me thinking about GOP primary voters.

In 2012, Romney got just over 60 million votes in the general - but not quite 20m were cast in all R primary contests combined. In 2008 there were just over 20m votes cast in the R primaries, but the ratio of R primary votes to R general votes was actually LESS: not even 17%. In 2000 the total R primary votes was a shade less than in 2012.

That 20m seems something of a meniscus, but IMO there's a good chance this cycle will shatter it. I say that not just off the numbers in Iowa & NH, but also 1) the Ds have had the WH since 2008, 2) R voters have had numerous choices, including several (Rubio & Jebya in particular) repeatedly propped in the MSM, lending the impression of a more competitive contest than actually, & 3) Trump is spectacularly populist, historically entertaining, & he's tapped into base frustrations with their own party. Add to that Trump is building a huge, possibly insurmountable plurality, tho perhaps not enough to go to Cleveland with the nomination cinched - IOW, not so much a contest as a SENSE of one, which was missing in each of the last four R primaries.

IMO those factors have driven the eventual total to where it might reach close to 25m. It won't reach 30m, but I want to use that higher figure here to make my point. If we assume Trump gets more or less the same support in the general as Dubya in 2004, McCain, & Romney - that is, 60m votes plus or minus 2m (Dubya only got 50m in 2000; that says something.), that means Trump will have won the R nomination with about a third - I'll say 35% - of R primary votes totaling 25m. That works out to less than 9m - less than the number of U.S. adults at any moment suffering from a seriously debilitating emotional/mental condition, & well under half of all U.S. adults who typically evidence holding insupportable weird ideas.

The PPP poll out this morning clearly shows Trump supporters are 'out there', even compared to the R base, in holding weird insupportable ideas. I think it's more than possible a large % of voters supporting Trump in the R primaries have not been participating in primaries or generals for a long time, maybe never.

Trump is attracting crazy people. So, the question: in attracting crazies. will Trump prove able to retain the relatively more sane parts fo the R base in the generral? Polling to date shows, No, he won't: he'll bleed off more than the crazies he's added.

mcfrank said...

Also, "Democrat" and "Republican" meant completely different things in 1960 (soon to change after 1964).