First time for everything. If the GOP just makes it up as they go why not the Dems?
Because it wonât work.
Garland was denied a seat because the Senate majority knew it could get away with it. Several previous nominees have been blocked by a Senate majority. They are constitutionally allowed to block nominees, forever. There is nothing anyone can do about it.
The same is not true of the filibuster. It is a product of tradition, not law. And a SCOTUS filibuster has never been done before. Not by the GOP, not by the Democrats. The only way it would work is for a nominee far more marginal than Gorsuch, where the public is overwhelmingly on the same side.
You keep saying never been done before like that matters. You want a list of things the GOP has done so far thatâs never been done before?
Itâs never been done before AND it has no constitutional support. That combination is why it wonât work.
Itâs true that the blocking Garland from the SCOTUS was unprecedented, but it has constitutional support. So the GOP got away with it.
Likewise, filibustering legislation has no constitutional support but enjoys a long tradition, so both parties can get away with it.
But in Gorsuchâs case, both elements are missing. Itâs pointless to try, except to score political points against an obvious monster. And Gorsuch is not particularly monstrous.
I donât understand what this means. What âconstitutional support?â
Supreme court nominees are constitutionally required to get a majority vote in the Senate. There is no way around that, and no recourse if a Senate majority rejects the candidate. Even if every candidate is rejected, forever. Blame the founding fathers.
Speaking of which, I believe that Obama was not the first president who had a nomination âstolenâ by the opposing party. That honor goes to Tyler. His nominee, John Read, was voted down in the Senate and Tyler did not have time to nominate another before his term expired. Apparently the Senate did not approve of Readâs anti-slavery views and were waiting for another president to fill the slot. Hmmm, I might have to take back what I said about Garland being unprecedented.
Youâll be glad to know that the Senate majority at the time was held by Democrats, and Tylerâs successor (also a Democrat) successfully filled the open position.
But there was no vote.
True. But despite my poor phrasing, there was no vote on John Read, either.
Nor was there a vote on William Micou, who suffered the same fate after being nominated by Fillmore. Again the Democratic Senate waited for Pierce, another Democrat, to fill the spot.
So Garland is apparently the third nominee to fade away without a vote. But the first Democratic nominee. Howâs that for karma?
And the story is much more complicated than that if you dig in. So he had two seats open up, one in December, one in April. So both within a year of the election. And they did get votes, though failed confirmation. Read did not get a vote, but was instead withdrawn.
And while we can argue that the failure to confirm was unjust (and it was rejected by a mix of his own party as well as whigs), it was considered and rejected on merits. That those merits they rejected it on was opposition to slavery expansion does not expunge this fact.
And to top it off he did put through a nominee that filled a seat in February, well after the election, and with less than a month to go in his term.
And Micou is a weird case, and in no way analogous as it was literally put forward in the last days of a senate session (he was nominated March 4th, yet the replacement nominee was confirmed on March 25th, after the new senate and President took office. That late.) Further complicating was the fact that the Senate had confirmed the previous nominee, but Benjamin declined, and suggested Micou. So the senate had done its job, but due to timing quirks did not move on Micou for a spot that was filled 3 weeks later.
This is not to say that things never happened where a SCOTUS nominee was declined, but Tyler is the only one even close, and that was far different still as the Senate didnât just flat out refuse to consider nominees.
Thatâs generous. Tyler had two seats to fill, and made five nominations. Three were rejected. One (John Read) never got a vote and was filled by the next president. One was finally confirmed.
If anyone has reason to hold a grudge against the Senate, itâs Tyler.
True. Three were outright rejected. Read never got a vote, but was withdrawn because it was clear he would be rejected due to his non expansionist leanings. Rejected by Tylers own party, I may add. That Read would later become a major activist for the new Republican party, and a supporter of Lincoln does not alter the fact that at the time he was in the Democrat sphere.
And, for all that, even he still got a seat confirmed in his last months.
I mean we are kind of talking at cross purposes. You are focused on one aspect, the failed nominations as well as one who never got a vote. I will agree with that, but place greater emphasis on the fact that the Senate did not refuse to do their job and consider nominees. You may argue Read, but at least there they had a reasoning beyond âlet the next president fill itâ. Now sure that was a part of the equation, but that one of their core and most important issues, expansion of slavery, was a part of the reasoning does materially make it different in my mind.
Also the fact that we have to go back to the time of the political upheaval caused by the breach of slavery as an issue, and the showdown that was inevitable, to find even a remotely similar incident does not bode well. The factor that drove those actions led to literal civil war. Slavery expansion as a political motivator as a major driver from at least Van Buren on. There was no such bedrock principle, even one as abhorrent as slavery, on which no hearing on Garland for nearly a year rests.
Wonât disagree. Politics of the 1830s and 40s were weird man.
Are you saying this is somehow OK because of shit that happened well over 150 years ago?
What happened with that awful lady that George W. Bush put forward?
Harriet Miers? She wasnât filibustered. But her confirmation hearing was turning into an embarrassment for Bush, so her nomination was withdrawn. Otherwise, itâs very likely she would have been rejected outright. Bush nominated Alito instead.
As a sidenote, any time I find the apocalyptic awfulness of Trump is making me nostalgic for the merely terrible awfulness of W, I think of Harriet Miers and the nostalgia goes away.
[quote=âmagnet, post:62, topic:128260â]
Garland was denied a seat because the Senate majority knew it could get away with it.[/quote]
They believed they could get away with it, and use it to keep a certain group of voters in line in the election; that there was no better play for Obama than to let them refuse to consider the nomination. They only actually get away with it if we all agree that it is over and done with and was therefore a legitimate action.
There is a major difference between nominees being rejected (or withdrawn because they would be rejected) and nominees not being put up for a vote. That he was not voted on and rejected implies that Garland would have had the support of a majority of the Senate.
This is not at all clear. The Constitution makes no mention of what happens when the Senate refuses to give its âAdvice and Consentâ. This was a straight up power-grab by the Senate Majority Leader, and treat it as âoh well, I guess he can do thatâ is the only thing making it a legit power of the Senate. You could just as easily argue that it is not ok to do this and that Garland should get a hearing before a new nominee can be considered. Again, if it was as simple as a majority of the Senate not wanting to confirm Garland, why arenât they holding a hearing on him and voting him down?
The Democrats can refuse to play ball with future Supreme Court nominations until something is done to formally indicate that this tactic was not a legitimate one. That could mean censure of McConnell by the Senate, it could mean putting up a centrist candidate to fill Garlandâs seat, it could mean a binding agreement to choose a candidate to replace the next retiree from a bipartisan list of acceptable names. There are lots of possible remedies and telling the democrats to sit down and shut up about it because they canât do anything is silly. They can stand up and make noise, and they should do that until this injustice is righted, because the alternative is that there are no rules anymore. If the Majority Leader can invent constitutional powers for himself (note that this wasnât even something done by the Senate as a whole) because no one has standing to sue him, thatâs a serious problem for the legitimacy of the government. The Democrats need to take this seriously and fight it on those terms, not treat it as a weapon they can abuse in some new creative way later on. And I would say the same thing about the GOP if and when the Dems pull some similar shit - you need to fight against the erosion of the rule of law, because 52-48 should not be a âwe get everything, you get nothingâ split.
Well, there are always potential political consequences. Legally, though, they are in the clear.
I think itâs more of a minor difference, but anyway there is precedent for both scenarios, as discussed above.
I find that very difficult to believe. If a majority of Senators truly wanted Garland to join the SCOTUS, then I suspect that he would be on the SCOTUS.
Well, that tells you that nothing happens.
Until they have a Senate majority, it doesnât really matter whether the Democrats want to play ball with future nominations. I mean, what do you think they can actually do?
Yes, and eventually they will be told to sit back down by the parliamentarian.
Thereâs no constitutional protection for Senators in the minority party. At all. They get whatever the majority agrees to give them. And thatâs typically motivated by balancing expediency, future prospects, and tradition.
You seem to think that the Senate rules are written in stone. But they arenât. Itâs legally allowed to rewrite the rules whenever the majority want. Thatâs how we had a filibuster for cabinet appointments, and then suddenly Democrats decided we didnât have it any more. The minority Republicans screamed and kicked up a fuss, but they couldnât change the outcome.
Traditions developed in the age when the senate was eager to participate and express opinions on the record. They no longer do, so there is nothing which prohibits the president from presenting a nominee and giving the senate 120 days to exercise their hearings and advise, but without voted objection the nominee is assumed to be confirmed.
And who is going to pass a law that allows the president to presume consent when none is given?
If congress gets to make up their interpretation of the constitution, then so does the executive. IANAL, but I know of nothing which says they MUST hold a vote to positively confirm, in the same way there is nothing which specifies their consent may not be assumed if they actively choose to abrogate their responsibility to advise. The implementation will be hammered out in the courts as either side pushes the rules.