Friday, October 28, 2016


A Politico story notes the possibility that a Republican Senate might continue to maintain a Supreme Court blockade if Hillary Clinton is elected president -- with no registered objections so far from Majority Leader Mitch McConnell:
A spokesman for McConnell pointed to comments made a month ago, when the GOP leader declined to speculate on how a Supreme Court nomination might be handled if Clinton wins.
Greg Sargent makes the obvious point that McConnell has repeatedly said the next president should fill the seat:
Here’s McConnell saying this last March:
“I believe the overwhelming view of the Republican Conference in the Senate is that this nomination should not be filled, this vacancy should not be filled by this lame duck president.... The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be.”
Sargent provides another McConnell quote to the same effect, as well as a similar quote from a letter written by Republican members of the Judiciary Committee. There's no doubt about what these senators promised.

Yet I'm not so sure about this:
Putting aside the substance of this dispute, there’s no way around this basic fact: If Clinton is elected president, the American people will have weighed in on the direction of the Court and will have exercised their will on this question -- by the lights of these Republican Senators themselves.
Really? I don't know about that. I'm afraid McConnell and his colleagues might argue that Americans didn't decide they wanted Clinton to choose justices.

This denial of reality could take one of several forms: They might argue that there was widespread voter fraud. They might argue that the voters were voting against Donald Trump and not for Hillary Clinton, and therefore they weren't really voting to give Clinton the powers granted to her by the Constitution. They really might hit the latter argument hard if it was a close contest and enough votes were cast for minor-party candidates to deny Clinton a majority of the overall popular vote.

Or Republicans might not even bother to acknowledge or comment on their past promises. They'll hope that most Americans have forgotten what they said -- and they'll probably be right. But if they do feel compelled to comment, I expect them to argue, in one way or another, that Clinton is an illegitimate president. It's what Republicans always believe when a Democrat wins, so why not?


Unknown said...

I have been a lawyer since 1977. I consider myself someone who respects the "rule of law" in our country. Hell, as an undergrad I took "Govt. and Politics" as a major.

What's happening in the Republican Party: the willingness of McConnell et al to attack and undermine the very foundations of constitutional law solely for partisan advantage, is an evil I never imagined in my worst nightmares that I'd see as an adult. It really is beyond shocking that this is happening.

You know, I thought the USA had suffered the greatest divisions it was likely to see after the Civil War during the Vietnam era. But I was wrong. This kind of institutionalized sedition, from within the Government itself through elected officials, is a far greater threat to the Republic than thousands of "dirty hippies" chanting "Peace Now" in the streets a half century ago, and the occasional literal bomb thrower.

I asked myself a lot what is the cause of this madness. I really think it is down to the fact that the Democrats were in power for decades after the New Deal, and when the so-called Reagan Revolution began in 1980 the Republicans thought somehow that they were "entitled" to a permanent Republican majority. They simply cannot handle the idea that the American people will still choose Democrats, especially for the presidency.

I know there are other reasons. The demise of the fairness doctrine in media was, in retrospect, a huge blow to our civic culture. It made possible Fox News and hate radio, and the entire culture of the denialism and nihilism regarding the federal government that we see today.

Changing demographics together with huge cultural changes (acceptance of gay marriage, abortion, "different" lifestyles) have also ignited a primal opposition among traditional white Americans. One can see it happening, but it is still shocking.

I devoutly hope that the Democrats take over the Senate. If they don't, we are going to see a grand mal constitutional crisis and, I fear, real blood in the streets.

Anonymous said...

The Cheney Theory of Unitary Executive holds a president can disband an obstructionist congress and send it home for re-"election".

An odious precedent is none-the-less precedent,
Ten Bears

Victor said...

Well, they can still claim their "lame duck" theory.

Because, after all, once her hand is lifted off of the Bible, Hillary will be a lame duck President - the question will be, for 4 or 8 years?

As for the GOP:
Pary Over People!
Party Over Country!!

fqmorris said...

Democrats take the Senate. Republicans force the Nuclear Option.

Rand Careaga said...

“The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be.”

The beauty of this formulation is that the GOP can claim to be perfectly consistent when, beginning on January 20, it repeats that it will “ when it considers the qualifications of the nominee the next president nominates, whoever that might be.”

Feud Turgidson said...

I agree McConnell will show no shamke & have no difficulty finding a way out of the supposed handcuffs he & his fellow R Caucus members put on for President Obama's last year.

I think it won't matter whether or not the Dems control of the Senate gavel: either way, McConnell will oppose any & all President Hillary SCOTUS noms (I think there'll be more than one, and that the first current justice to announce stepping down may well come as a surprise.)

Steve M. has some solid speculation on the sorts of things McConnell might raise, so to those I'll just add one more, which I actually think stands a good chance of being THE main one (beyond the blanket Sunday Show whining we'll hear about Schumer-led Dem majority, if that's the situation, will be acting 'lawlessly', 'dangerously', 'deeply imprudently', 'without precedent', and, of course, 'unconstitutionally' in dumping the filibuster rule at the outset of the next Congress, which is when, by custom, the incoming majority presents the rules which the Majority Leader is expected to 'enforce' over the term).

The excuse I'd place my money on is that House Oversight Chair Chaffetz by then apparently fortuitously will have indicated that he & his committee will have received the backing of both the House Majority & Speaker Whoever in turning the entire term into a non-stop free range full contact kitchen sink investigation of the new president, going back to her ancestors' birth certificates & voting records, and 'therefor in our judgment it would be not only imprudent but an irresponsible act of betrayal of our sworn oaths of office to serve the American People' not to first allow for that 'vital business' to run its course before even considering ANY of her nominations, but in particular any for the SCOTUS.

I think there's quite a bit more than a non-trivial chance that the first sitting justice to indicate for retirement will be Justice Clarence Thomas. Without Scalia there to do his talking & much of this thinking for him, IMO he's going to feel too exposed, both to the public during oral arguments and the SC's conferences, with the combination of 3 current female justices & the prospect of more to come AND the news about him having groped that then young female lawyer back in the late 1990s. And, Yes, I'm aware that he's not even 70 yet & only the 4th oldest justice on the current court. Thomas is the least bright of the current justices but he's not so oblivious to recognize what a really bad time this is has become to be assumed or known as a p-grabber.

Feud Turgidson said...

Per Victor's comment: Not a lot of people realize what a excellent dancer the Fuhrer was. Churchill couldn't hold a candle to him.

And as for Churchill being a "painter", Hitler: there was a painter! He could paint an entire apartment in one afternoon - TWO COATS!

(Sorry, couldn't resist. I recently re-watched for the umphteenth time that classic Brooks' 1968 movie, The Producer, featuring the amazing Kenny Mars as Fuhrerfile Franz Liebkind.)

Victor said...

That's one of my favorite movies of ALL TIME!!!


I've probably watched it hundreds of times - and still find something new to laugh at.

Jimbo said...

Feud, I've no doubt the loathsome Chaffetz will attempt to investigate the entire history of HRC but unless he can point to something she is doing as President that needs investigating she can just tell him to fuck off. Also, HOR has no role to play in any executive office appointment/nomination; only the Senate.

Dark Avenger said...

You know, I don't know if laughter is the best medicine, but it's certainly one of the cheapest.

Don't be stupid, be a smartie.
Come and join the Nazi Party!

DTR said...

@Feud. I agree with you about Thomas. I have thought for quite awhile that he would step down should there be a liberal majority on the Court. Kennedy may also exit as his status of holding every decision hostage would be neutralized. I think that status has been his main impetus for remaining on the Court. I disagree that Thomas is the least of the legal minds on the Court, I think the dimwit Alito holds that honor.

Feud Turgidson said...

Diane Rodriguez, the basis for me not agreeing is that Kennedy, in his withdrawn diffident way, revels in being a SCOTUS player. Two data points: Kennedy uses his SCOTUS STATUS so that he & his wife can tour the world on judicial conference junkets: both of them love tourist travel, and YTF not? It's likely they're treated like royalty. Second, remember Kennedy styles himself a poet, a novelist & a playwright, & actually has had one of his plays staged, a vapid thing that'd have had zero chance of drawing flies but for his STATUS.
That is, Kennedy's the opposite of Thomas in how relates to the world. His personal style is colorless - it reminds me a lot of the sort of impression of erudition that former Senator Bill Bradley gives off, where being low key, quiet, reserved, slow-talking, understated & dry tends to draw unearned credit for intellect (I'm not saying Bradley isn't smart; I actually think he's smarter that Kennedy, whose intellectual pretense has led to a body of judicial writing that I'm pretty sure aren't even reconcilable to non-Euclidian mechanics.).But note that EVEN RETICENT BILL BRADLEY's main source of fame in in the arena of professional sports entertainment & that he actually made a run for the D nomination for POTUS.
If Thomas had something like the combination of intellect & courage of say Bill Russell, Alan Page, or Kareem Abdul-Jabbar, each of whom has a personality make-up much more along the lines of Bradley or Kennedy, I wouldn't be putting his name out this way. But Thomas has always had a Nixonian fragility of ego, his life & career a ceaseless string of taking on personal affronts & harboring resentments. Nixon was a fighter, but in the end withdrew from what would have been the fight of his life & over of all things his core constitutional belief: that nothing a POTUS does can amount to illegal.