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Will GOP Approve Obama’s Supreme Court Nomination?

Obama Garland announcement

President Obama presents Judge Garland as his Supreme Court nominee in the White House Rose Garden. (Source: New York Times)

Short answer: No.

In fact, they won’t even give him a hearing.

President Obama has done his Constitutional duty and made a nomination to fill the vacancy on the US Supreme Court left by the death of Justice Antonin Scalia. It is Judge Merrick Brian Garland, who currently serves on the Court of Appeals for the District of Columbia Circuit. He is reported as being a centrist – left of centre on guns, but right of centre on criminal matters.

The rules in the United States for Supreme Court nominations are that the president makes them, and the senate has the right to approve or reject those nominations. This apparently used to be a fairly routine procedure, taking around a week. This all changed in 1967 with the nomination of the first black candidate, Thurgood Marshall. At that point the average ballooned to more than two months. According to NPR, the justices on the current court (including Scalia) faced an average of 71 days before they were confirmed.

The longest time it has ever taken for a nominee to be approved is 125 days. That was in 1916 when Judge Louis D Brandeis had to face nineteen hearings before he was confirmed. There is well over double that time available until Obama’s term of office ends.

Republicans are citing multiple reasons for their refusal to give Garland a hearing, but none of them stand up to scrutiny in my opinion.

The leader of the Republican opposition to giving Judge Garland hearing is Senate majority leader Mitch McConnell of Kentucky. In 2010 in a speech to the Heritage Foundation, McConnell announced that his party’s “… top political priority … should be to deny President Obama a second term.” At the time (September 2010) an NBC/Wall Street Journal poll, McConnell’s approval rating was 12% positive, 20% neutral and 18% negative (50% said they did not have an opinion). His consistently negative leadership and actions since have not improved his perception in the eyes of the public. In fact, McConnell is the only senator in government that has a negative approval rating with his own constituents. In a story published in YouGov on 6 December 2016:

Senate Majority Leader Mitch McConnell (R-Kentucky) has a 52% disapproval rating, according to polling data published in Morning Consult. He’s the only senator with a disapproval rating over 50%; the next senators on the list, with 41% disapproval ratings, are Republicans Pat Roberts of Kansas and John McCain of Arizona.

Nor does McConnell have many who approve of the job he’s doing. At 38%, he barely edges out Democrats Bob Menendez of New Jersey, who’s under indictment, and Gary Peters of Michigan, each at 37% approval.

Given the importance of McConnell’s position, Gallup also looks at McConnell’s approval rating both amongst Republicans and with all USians. Even Republicans currently do not approve of the job McConnell is doing:

McConnell Approval

As would be expected, the view of McConnell amongst all USians is even lower:

McConnell Approval Overall

On the other hand, despite being in the eighth year of his presidency, Obama’s approval rating amongst all USians is still relatively high at 50% (81% amongst Democrats), and is currently at its highest level since May 2013:

Obama Approval to March 2016

Senator McConnell is trying to frame his decision to refuse a hearing for Judge Garland as one of principle. However, there are currently seven of his colleagues who have indicated that are prepared to hear Garland. They are: Rob Portman (Ohio), Kelly Ayotte (New Hampshire), Mark Kirk (Illinois), Jeff Flake (Arizona), Susan Collins (Maine), Chuck Grassley (Iowa) and Jim Inhofe (Oklahoma). Interestingly, six of these (all except Inhofe) are senators that are up for election in states that voted for Obama. These senators clearly realize that the refusal to hear an eminently qualified candidate for the Supreme Court is one that they will be unable to defend to their constituents. Ayotte and Grassley in particular had previously spoken out strongly against Obama nominating a candidate to fill the vacancy.

The Republican Party has always tried to frame itself as the protectors of the US Constitution – their chief praise of the late Justice Scalia was that he was a constitutionalist. However, in this case they are failing to meet their constitutional responsibilities by refusing to even hold a hearing for Judge Garland and thereby demonstrating they do not have the courage of their convictions.

Another reason the Republicans are using as justification for their inaction is that back in 2006 when he was a senator, Obama himself filibustered the hearing of Judge Alito. In February, Obama said he now regrets he did that. However, who’s to say whether he would still regret it if the current situation hadn’t arisen. What is true though is that the situations aren’t directly comparable. When Alito was nominated, he was given a hearing, and there was no doubt he would eventually be nominated whether or not Obama went forward with his filibuster.

McConnell is also using the so-called “Biden Rule” as a reason to deny giving Judge Garland a hearing. This comes from a speech vice-president Joe Biden made back in June 1992, when he said Supreme Court nominations made in a president’s final year of office shouldn’t be confirmed. Of course, this never actually became a rule, the speech was made much later in then President HW Bush’s term, and Biden never said that a nominee should not even be heard. I don’t think McConnell is going to win any arguments by citing a 1992 speech by a (then) minor Democratic senator over the US Constitution.

The truth is, if the boot was on the other foot, the Democrats would by and large be making the same arguments as the Republicans are now, and they would be just as wrong. I don’t even know if it’s possible any more, but wouldn’t it be nice if the Republican party took the high road and did the right thing?

Having said all that, I do think it possible that once the parties have their nominations for president sorted out, the Republicans will give in and at least hold a hearing. If Cruz is the nominee, he will frame this as being the right thing to do. If it’s Trump, they’ll know they’ve lost anyway. Even in the unlikely event Trump wins the presidency (currently I think it’s about 60/40 against), the Republicans can’t guarantee extremely conservative nominees like Scalia anyway.

I want to know exactly what the Republicans think they’re achieving by refusing to let the Garland nomination go ahead. Currently there are four Republican appointments and four Democratic nominations on the court. The Garland appointment will change the 5/4 balance from Republican to Democrat. Whatever happens, the next president will have three more appointments. If that president is Republican, they will have the chance to change the balance back to their favour anyway. This refusal to carry out their constitutional duty is pointless.

I think it is also worth pointing out that the United States is the only country in the OECD whose Supreme Court appointments are for life. All other OECD countries have limits of some kind.

63 Responses to “Will GOP Approve Obama’s Supreme Court Nomination?”

  1. Ken says:

    This is unprecedented and based on no principle at all, but simply politics. I’ve read where McConnell believes that Rep senators will benefit from being staunch. They have written off the presidency and could loose the House, so want to position the Senate as the last bulwark against Hillary.

    I don’t think it fair to say the Dems would do the same. Certainly they didn’t the last time there was a comparable situation in 1987/88.

    • j.a.m. says:

      Now, that’s rich. In point of fact, it was in 1987 that the Democrats, acting at the express command of their masters in the abortion industry (and with Biden chairing the Judiciary committee, hardly a minor role), blew up the traditional confirmation process through a shock-and-awe political assault against Judge Robert Bork. This vicious extremist campaign went so far as digging into the nominee’s video rental records. The Democrat-left cynically transformed advice and consent into a perpetual political circus. The republic has never recovered from this bizarre, craven and shameful episode, for Biden in particular bears a very heavy burden.

      Biden of course was still chairman four years later, during the equally shameful lynching of Justice Thomas. His disgraceful conduct and pronouncements throughout this period are quite pertinent.

      • Ken says:

        I was, of course, referring to Anthony Kennedy, who was confirmed by Democrats in the final year of a Republican president. The circumstances were not the same as now, but it’s as close as we can get for comparison. Heather gave no rationale for her belief the Dems would act as the Reps say they will do and I’d like to know why she’s sure they would. The Reps only “principle” is that they don’t like Obama. The Dems have never similarly disrespected the office so.

        Fortunately, and I duly thank the Invisible Pink Unicorn, the Dems, along with several more sensible Reps, kept Bork off the court. That Dems would seek to protect a women’s right to make decisions about her body was no surprise at all, and both Bork and Regan knew the outcome before Bork was even nominated, yet went ahead anyway. Regan’s strategy was to inflame the abortion debate as much as possible and I don’t think he cared what happened to Bork in the process.

        Btw, Bork’s video rentals were published by a local paper whose reporter discovered they were patrons of the same store, so went along and asked to see them. I guess it just sounds better to try to make people believe rabid Dems did it. So much for principle.

        • j.a.m. says:

          Both Garland and Obama knew the outcome before Garland was even nominated, yet Obama went ahead anyway. Obama’s strategy was to inflame the abortion debate as much as possible in an election year and I don’t think he cared what happened to Garland in the process.

          Yes, the opposition party is doing its job by opposing Obama’s destructive ideology. But for an example of leftists disrespecting the office, just look at what some of them foolishly say to this day about President George W. Bush.

          • Ken says:

            Except Obama is the one actually doing his job here.

            Why keep digging with such bullshit like that? We know this is just an ideological matter for you. That’s clear and actually it’s ok. What isn’t ok are your transparent attempts to dress it up as something else. As I’ve asked in the past, why not just drop the pretence be honest from the start?

          • j.a.m. says:

            Can you explain how that works exactly — i.e., those with whom I happen to agree are tainted by ideology, whereas those with whom you happen to agree are pure as the driven snow? It’s an odd coincidence.

          • Ken says:

            Are you being deliberately insincere, or have you somehow forgotten the pages of interactions we’ve had on this very blog that show how silly your question is? There is no coincidence, because the parallel you attempt to draw is so obviously false. One example, while you can barely bring yourself to even acknowledge the deaths of thousands of innocents in the ME, let alone Bush’s responsibility for them, I’ve heaped criticism on Obama for the innocents he is responsible for killing, and the same goes for Clinton and others. Their political stripe doesn’t matter to me as it does to you. That I judge Obama less bad for killing fewer innocents than Bush is just logical; it doesn’t mean I pretend he’s not a criminal like you do Bush.

          • To be clear, and I should have been clearer in my post, when I said that I thought the Dems would do the same thing, I was referring to trying to argue that a vacancy shouldn’t be filled in an election year. I don’t think they’d try to get away with this tactic of refusing to even hold a hearing.

            You obviously have a big problem with abortion j.a.m., but this constant description of a so-called “abortion industry” is completely misleading. Perhaps we should be calling all those senators who are funded by the NRA as funded by the murder industry. Abortion is a legal medical procedure – the same cannot be said for a lot of the deaths the NRA tries to justify. And how many veterans commit suicide each day because the NRA and their GOP appointees on the Supreme Court made it so easy for them to get guns? They are complicit in their deaths too.

  2. rickflick says:

    I don’t think the dominant party should have the right to avoid hearings. It clearly makes no sense in light of the process spelled out in the constitution. I’d like to change the constitution to specify the Senate MUST hold hearings within a certain period, and that it must put the nominee up for full senate consideration within a certain period. Period.

    • j.a.m. says:

      The Constitution does not spell out a process, so it’s entirely up to the Senate. The Senate’s Constitutional duty is to provide a check on the executive. Whatever other rationale there may be to conduct hearings or a vote, the Senate can perfectly well advise and consent by doing nothing: the advice is to wait, and consent is denied.

      The Constitutional reform that’s needed is to restore checks on federal power, and to affirm the principle that the Constitution must be changed by the people, not by judges. Those reforms would go a long way to depoliticize judicial nominations by lowering the stakes.

      • Ken says:

        Yes, they have the power to act irresponsibly (they do it so often, we’ve all lost track), but you just can’t paint this as the Reps just doing their Constitutional duty, aw shucks. That’s a obvious twisting of the word “duty” and one you would howl at if the Dems had done it. It brings to mind Bill Clinton’s pathetic attempt to redefine “sex”.

        If they don’t think the nominee is qualified, they can do their actual duty and vote him down. But we know this isn’t about the nominee, who the Senate has confirmed before and would again. There aren’t any real issues here and it certainly isn’t about duty. Justice Scalia simply had the bad judgement to die with a Democrat in power and Republicans are responding to the political setback with more politics.

      • That is completely disingenuous j.a.m. If they had the courage of their convictions, they would hold a hearing and oppose Garland’s appointment. The problem is they know there are no justifiable reasons to ooppose him, thus they won’t even have the hearing. And they can hardly say Obama is trying to force a left-wing extremist on them – Garland is better than they could have hoped for from a Democratic president.

        I think rickflick is right – a constitutional amendment to tidy up the process wouldn’t go amiss. That’s the problem when too many people think your country is the greatest democracy the world has ever seen – the fact that it is actually pretty damaged democratically speaking doesn’t get recognized by enough people for necessary adjustments and changes to be made.

        • j.a.m. says:

          No one who has witnessed the last seven years of misrule by an inept neighborhood organizer needs to be reminded that the world’s greatest democracy is more than capable of producing an occasional lemon.

          But just because some people find the present spectacle untidy doesn’t mean it’s undemocratic. Nobody ever said democracy would be tidy. The people put Sen. McConnell in his job, and he’ll change tack when and if he senses they have.

          If the people decide they want to take partisanship out of the judicial appointment process, the most rational and effective reform would be to lower the stakes by restoring limits on federal power, especially of the judiciary itself and of the executive branch.

          • Ken says:

            It is a testament to ideological blindness that such could be said about Obama while Bush is given a complete pass.

            “The people put Sen. McConnell in his job, and he’ll change tack when and if he senses they have.”

            This I agree with. People get the politicians they deserve. Despite the system being so corrupted, they could still throw out the corrupters if they chose to. This is what the Trump phenomenon is about even if his supporters are too confused about the issues that have created their disquiet to make sensible choices.

            The irony of you talking about limiting the executive is that a number of conservative commentators argued cogently at the time, that Bush’s executive over reaches were so egregious that impeachment was the only solution. Otherwise, the new powers would be passed to future presidents, cemented in, and become much more difficult to reverse. Of course the Republican establishment only seeks restraint when it suits their partisan goals. The health of the republic matters not to these parasites.

      • rickflick says:

        The problem I see with judicial restraint is, the constitution is over 200 years old and conditions have changed rather dramatically. Changing it to account for all the changes is impossibly cumbersome and difficult. Without reinterpretation within the spirit of the written word, society would find itself unbending and inflexible and unfair.
        Take the second amendment, for example. What was the context when “”A well regulated Militia…” was written? What meaning does that have today on the south side of Chicago, or downtown D.C.?

        • NZ is one of only three countries in the world (Great Britain and Israel are the other two) that doesn’t have a formal written constitution. There are frequent attempts to change that, but the US experience with the 2nd Amendment makes me wary.

          Language changes all the time. Imagine if the Constitution was written in the English of Shakespeare, or Chaucer, or Beowulf. Imagine how we might sound to the people of 500 years in the future.

          We have laws, set by our democratically elected government. If we don’t like the laws a government introduces, they get voted out and the laws are removed by the new government. It’s not a perfect system either, but it works. If it’s not broken, don’t fix it is my opinion.

          Of course, once you have a constitution, it’s a whole different scenario. However, I think it’s ridiculous not to recognize that societies evolve over time. Those who say that the US constitution was never meant to apply to same-sex marriage are presenting a ridiculous argument imo. It wasn’t meant to apply to anyone except male WASPs actually. When it was written it was inconceivable there’d be women, Catholics, or people of colour on the Court either. Which includes, of course, the right’s precious Justice Scalia.

          • rickflick says:

            I’ve always assumed a constitution is necessary for stable, just, governance. Perhaps it’s not. The U.S. has been described as a great experiment in democracy. It’s beginning to look like there’s a need to go back to the proverbial drawing board.

          • I think it was a great experiment when it started. The problem as I see it is that they’ve stopped adjusting the experiment when they find bits that don’t work. Other countries have addressed issues like gerrymandering for example by having independent electoral commissions setting electorate boundaries – the US carries on with the old system. No-one else has such a long election season, and most of them are limited by law (ours is three months). Only half the country even votes, which is a sure sign the system isn’t working for a lot of people. Obviously I could go on – I’m not telling you anything you don’t already know.

          • rickflick says:

            Yes, you are right. The first founders – namely John Adams, were seriously worried that the party system would become a roadblock to progress. It sees that fear has been realized periodically and especially lately. Gerrymandering, for example, is hard to change because the party with the advantage will not give the advantage up. The other party, when it comes to power, feels it has to use the same tactics to undo the damage. No one feels pressure to remove Gerrymandering. A kind of tragedy of the commons scenario.

          • We used to have a two-party system too, and it was grossly unfair. Parties with up to 15% of the vote weren’t getting a single seat in parliament, and sometimes the party with the most seats and therefore in control in parliament didn’t get the most votes. We had a referendum in 1993 and a majority voted to change to MMP, which has been our system ever since. We’ve had another referendum since to see if we still want to keep it, and a majority of us said we did.

            There are people, usually political parties that would have more power under the old system and older people who think the old way was easier, who want to change back, but most people like it and I think the change has been successful. It requires MPs to cooperate and form alliances to get legislation passed.

            Despite fear-mongering that this would cause small parties to have more power than they should, this hasn’t happened. Small parties know that if they do take advantage of their position in that way, it will make electors hate them and destroy any hope of them growing their base or getting back into parliament.

            I can see MMP working well in the US. There are clearly multiple factions within both parties, but especially the GOP, and if they split out into separate parties then came together for legislative issues in which they had a common interest, it would be better I think. It would also mean that the extremes in both parties would be exposed as being not as popular as they appear. At the moment the squeaky wheel is getting the oil in US politics. Most people, whether on the right or left, and more centrist in their views. Opinions that are in reality unpopular amongst the majority, like de-funding Planned Parenthood or banning same-sex marriage, would be exposed as such.

            There seems to be a lot of lying by US politicians because certain opinions are required to be elected. It makes politicians unpopular and stops the most principled people entering politics. More parties would mean that a politician could join a party that aligns better with their views. It would also make voters understand that cooperation and compromise are required to properly govern a country and are good things not bad things.

            This has turned into a bit of a rant! Sorry! I’ll stop now. 🙂

          • rickflick says:

            I can’t fully analyze and appreciate the NZ system, but it seems well worth studying. I don’t know how on earth you could get Americans to look at a major alteration to governance like that since the one we currently have was ordained by god.

          • j.a.m. says:

            Many states have independent commissions that draw legislative districts. In California plus some other states, commissions draw Congressional districts as well.

            By design, most innovation and experimentation occur in the states.

          • j.a.m. says:

            It is the case that the U.S. Constitution was never meant to have any bearing on marriage practices of any description, and therefore never has had a single word to say on the subject. The federal government holds certain enumerated Constitutional powers, beyond which it is supposed to be powerless.

          • Ken says:

            Jam is attempting to mislead again. The Court does not require the Constitution to mention marriage to rule on it, because the Constitution is explicitly meant to protect individual liberty and ensure it is applied equally. Surely we can agree that “liberty” is a very broad concept, unable to be specified definitively in a written document, instead requiring the Justice’s interpretation from time to time. And indeed the Court has held that liberty should apply quite broadly for a very long time; this is nothing new. And as the Court has also long held marriage to be a fundamental right, that marriage rights should apply to all people is a small, logical and frankly obvious step in constitutional terms, except perhaps for those blinded by the irrational prejudices of their religion.

          • j.a.m. says:

            Ken would replace democratic self-rule, and the rule of law, with a cabal of philosopher kings who answer to no one. It may feel good when you happen to concur with the cabal’s decrees, but there’s no guarantee that always will be the case. So-called “progressives” certainly do NOT agree that “liberty should apply quite broadly” when it comes to questions of property rights, economic self-determination, parental authority, freedom of conscience, freedom of expression, freedom of association, the right of self-defense, or any infraction of “progressive” orthodoxy.

            No rational person who reads the Roberts, Alito, Scalia and Thomas opinions in this particular case can pretend that the cabal’s decree derives from any actual authority, or any form of legal reasoning, or from anything at all other than personal whim.

  3. j.a.m. says:

    Although Justice Kennedy was appointed by President Reagan, he votes with the two Obama appointees 80% of the time, whereas the comparable figures for Justice Scalia were 58% and 65% respectively. Moreover, Justice Scalia lent intellectual vigor and integrity that will be very hard to replace, whereas Kennedy’s opinions are mush. And memories persist of former Justice Souter and other Republican appointments who went bad. So it is not meaningful to judge “balance” on the Court by the party of the President who made the appointment, and it’s of paramount importance that Justice Scalia be succeeded by someone of comparable stature.

    • Ken says:

      If Senate Republicans agreed with you, they would hold hearings and investigate the nominee forthwith.

      • j.a.m. says:

        Perhaps, except that I could just as easily say of Obama that if he were serious, and wanted to appear statesmanlike instead of ideologically hidebound and politically calculating, he could simply name someone like Scalia, rather than put forward a nomination that “would result in a historic change in the court” (NY Times).

    • That just doesn’t make sense sorry j.a.m. Surely it is the job of a justice to rule according to the law, no matter what the political affiliation of the plaintiff. Justices ruling more frequently against plaintiffs who share their own political affiliation could just mean that they brought stupid cases.

      In all the commentary about Judge Garland, the one point of agreement is that he is eminently qualified and experienced. If there is some reason everyone is incorrect about that, the way to discover it would be to hold a hearing.

      • j.a.m. says:

        Apparently I need to clarify my comment above (17th, 7:13 PM). It was in response to your (Heather’s) original post about the two parties having made an equal number of current Supreme Court appointments. The point is that a president’s party is not necessarily a reliable indicator of that nominee’s judicial philosophy. Exhibit A is Justice Kennedy, who though a Republican appointee very often sides with Obama appointees. (Nothing in my comment meant to deal with plaintiffs in suits.)

        Regrettably, these days eminent qualifications count for nothing. They have not mattered since our current VP and his gang savaged good Judge Bork.

    • Mark R. says:

      Justic Scalia lent intellectual vigor and integrity.

      Hahahahaha. I know you are a die-hard conservative, but I didn’t know you were also a comedian. Scalia was an ideologue of the worst kind, motivated by Catholic faith. His views on race, gay rights, science and the environment were retrograde. Good riddance. He could easily be replaced if Republicans weren’t such childish hate-mongers and you know it.

  4. The Paxton marshall says:

    Good analysis, Heather. The Republicans have abdicated their role in governance. We should end lifetime appointments, but I guess that would take a constitutional amendment.

    • The thing is, I don’t think it’s all Republicans. There are good Republicans too. The problem is, imo, that politics has become a route to money and especially power and so there are too many getting into it for the wrong reasons. It’s the quickest route to be one of the one percent. Even your insider trading laws don’t apply to politicians and their immediate families – that’s a recipe for corruption right there.

      • j.a.m. says:

        Trading on knowledge acquired in the course of congressional duties was explicitly banned in 2012 (STOCK Act). That said, parliamentary immunity is a valid principle.

  5. j.a.m. says:

    This particular kerfuffle seems to have fizzled right quickly. Looks like President Cruz will be appointing Justice Scalia’s successor.

    Or, better still, President Ryan will appoint Senator Cruz to be the Court’s only Protestant, first Cuban-American, first male Latino, and only former Canadian.

    • The Paxton marshall says:

      Ho Ho. It’s fantasy season. The relevant questions to ask are who would President Clinton or President Trump nominate?

    • Biden gave a good speech at Georgetown today – I hope a few Republicans take it to heart: http://www.theguardian.com/us-news/2016/mar/24/joe-biden-merrick-garland-supreme-court-nomination-republicans-senate

      And a Gallup poll shows that most USians think that the president’s nomination should not only get a hearing but be confirmed: 52% favour confirming him and only 29% oppose. The rest don’t know. It looks to me like in the current political climate Republicans don’t feel like they can admit he should be approved, so they say, “don’t know.” Survey results here: http://www.gallup.com/poll/190091/support-garland-average-supreme-court-nominees.aspx

      • j.a.m. says:

        Biden has no shame, given his own disgraceful history in the Bork and Thomas affairs — but never mind.

        Listen to Biden in 2005: “President Bush incorrectly maintains that each nominee for a federal judgeship is entitled to an up or down vote. The Constitution doesn’t say that….The Senate can refuse to confirm a nominee simply by saying nothing and doing nothing.” — Joe Biden, Senate Floor, 27 April 2005 (quoting Sen. Byrd, an authority on the Senate). Moreover, Biden here was specifically defending the filibuster rule, so he is defending the right of a *minority* of senators to block *any* action on a nominee.

        https://www.congress.gov/congressional-record/2005/4/27/senate-section/article/s4356-1?resultIndex=138

        (Over his many decades in the Senate, Biden’s opinion of filibusters flips and flops, naturally, based on whose ox is being gored.)

        • rickflick says:

          If you agree with your interpretation of what Joe was getting at, what’s to prevent one party filibustering all the other party’s nominations…forever?

          • j.a.m. says:

            Good question, and the answer is that nothing inherent in the process prevents that. Only mutual trust, consensus-oriented leadership, and public support can prevent it — all of which have vanished under Obama.

            With respect to judicial nominations in particular, as I said above, the most critical thing is to restore limits on federal power, and to restore the principle that the people alone, and not judges, can modify the Constitution. We have to lower the stakes of these decisions.

        • Of all the arguments, that is the one that annoys me the most – “the Democrats did it so it’s okay for us.” If the Republicans are all about proving that they’re better than the Democrats – more moral, more responsible etc, then how about doing the right thing whatever either party did in the past. Why don’t they say, “the right thing to do is to give Judge Garland a fair hearing, and that’s what we’re going to do.” They could even add, “We’re not going to do what Democrats have done in the past because we’re better than that.” But no, they won’t, because although there are faults on both sides, it seems clear to me from the outside that the Republicans are the biggest problem when it comes to the extreme partisanship in US politics.

          • j.a.m. says:

            Historical precedent is very relevant to the discussion, so it’s not simply a matter of pointing out Biden’s hypocrisy. And actually, what Biden said then (but not now) is correct as a matter of law and precedent.

            In any case, the right thing to do is a matter of opinion. There is nothing “unright” or unfair in turning down a nominee, or ignoring him. As Sen. Byrd put it, the executive proposes and the Senate disposes.

          • The Paxton marshall says:

            The people will decide. Republican nihilism and obstructionism have brought the party to the brink of destruction. This Supreme Court cynicism is just one more nail in their coffin. They have sown the wind and are reaping the whirlwind.

  6. rickflick says:

    But why blame Obama. He was openly condemned by John Boehner and Mitch McConnell the minute he took office. McConnell’s number one job was to make him a one term president, remember?

    The polarization you’re talking about stems mainly from the Republican party strong swing to the right which started during George Bush’s term and before.

    Unless you mean the government gridlock is due to Obama being black. That I could understand.

    • j.a.m. says:

      Does this — a man holding the most powerful position in the universe — sound to you like a responsible leader interested in building trust and consensus?

      http://www.politico.com/story/2009/01/obama-to-gop-i-won-017862

      Also see: youtu.be/_i0bDbYUUhY

      • The Paxton marshall says:

        Obama looks like a man focused on saving the American economy from the great financial meltdown if the Bush administration. It has worked out pretty well too, in spite of Republican obstructionism at every turn. Did you notice the Dow on the ticker of the 2010 video? 10,000. And that was already a big jump from what he inherited.

      • Well, he did win, and I for one am sick of the Republicans thinking they could still have everything their own way despite the fact they lost. Boehner’s comment that he didn’t understand how spending on contraceptives was good for the economy is actually a case in point. Giving women control over their own fertility and bodies is good for the economy. The US economy suffers because women aren’t fully a part of it – this is accepted economics.

        The Little Sisters of the Poor, members of one of the most corrupt organisations on the planet, instead of just signing a bit of paper giving the women who work for them the choice whether of not they use contraceptives, would rather spend millions on a lengthy court battle. And they blame Obama for the situation. The blame lies with an organisation that has spent its whole existence teaching that women are lesser beings that men.

        • paxton marshall says:

          Hear Hear Heather!!! That was magnificent!!!

        • j.a.m. says:

          The Republicans did not lose — the American people elected them to run a co-equal branch of government and to keep Obama in check. Even if they were still in the minority, they were elected to represent the half of the country that dissents from Obama’s pernicious ideology.

          In this country, the government has no business meddling in the terms of private insurance benefits offered by private employers. More importantly, however, the Constitution and everything this country stands for renders the government powerless against the right of conscience, as the Little Sisters of the Poor so beautifully and powerfully remind us. Conscience does not depend on public opinion or popularity, and often stands in opposition. That’s why America exists, and why we still need her.

      • rickflick says:

        “I won.” sounds like the right answer to the question…”why don’t we do things the way the Republicans want it done?”

        • j.a.m. says:

          Exactly. The question was whether he sounds interested in building trust and consensus. Answer: Not at all.

          • rickflick says:

            Obama made many attempts and in many cases did compromise on the few bits of legislation that did come to his desk. He also stated many times, clearly, that he wanted to cooperate with congress. So the question of whether he “sounds interested” in cooperation is – yes. The fact that the Republican party was hellbent on obstruction is the main reason much needed legislation was not passed. Take legislation on moving to a green economy. The Republicans have roadblocked legislation and in fact are deniers. This is probably the most important issue of our time and the Republican party does everything in it’s power, at the behest of the carbon industry, to prevent effective measures. This is not only disingenuous(they know the science), but it amounts to criminality when you consider the impact on the next generation.
            Cooperation is a two way street, but what we’ve seen during the term of this president is blatant and unconscionable obstructionism of anything Obama proposes. It’s been suggested that if Obama wants X, he should propose not-X to trick republicans into supporting X.

          • paxton marshall says:

            Well said, rickflick!

          • rickflick says:

            Does this look like Republican cooperation to you?

            https://goo.gl/e2driZ

            https://goo.gl/e2driZ

            Posting the link twice to see which works.

          • paxton marshall says:

            The Republican party cannot cooperate with the President because the Republican party is in revolt against itself. The working class/tea party/evangelical base that has continuously bought into the trickle-down theory, that what is best for the corporations and CEOs is best for the country, has found its champion, Donald Trump, and will not be lured into accepting another McCain, Romney, Rino. It all works in Hillary’s favor.

          • j.a.m. says:

            Great idea, let’s give that theory a test. With regard to the Supreme Court vacancy, Not-X would be someone who indisputably would carry on Justice Scalia’s judicial philosophy. So Obama should appoint someone like that, and we’ll see the Republicans’ knee-jerk opposition.

          • paxton marshall says:

            What kind of rock would Obama have to look under to find an arrogant bigoted a-hole like Scalia?

          • rickflick says:

            That’s exactly right. But I think Obama is too clever to take the risk. What he actually did was nominate someone with impeccable qualifications who is quite centrist, while I’m sure he would rather have gone left. This is an example of the very conciliation and accommodation you seem skeptical of.

          • Why is the only acceptable candidate someone who will vote like Scalia? Did Scalia replace someone with the same views as him? Do the current justices have the same opinions as those when it was first established? Society evolves, and the problem is that many conservatives are simply scared of change. I don’t want to go back to the way women’s rights were in the 1970s let alone the 1950s, and despite his abilities, there’s no doubt that Scalia’s attitudes belonged to a previous age.

            Garland is a perfectly reasonable nomination in a divided political climate. When Obama was elected, one of the constant refrains from those who opposed him was that he had the most leftist voting record in the Senate. Therefore, I’m sure that he would prefer to nominate a much more left of centre candidate than Garland.

            There is a Constitutional requirement for Obama to nominate a replacement; there is no requirement for that nominee to hold the same views as the one s/he is replacing.

            You talk about legal precedent. I thought the whole idea of having a constitution was that it trumped everything else, but you want a speech made by Biden more than 20 years ago to trump the Constitution. Quite honestly, your position is ridiculous.

            I would be saying the same thing if there was a Republican president too. The only thing that might give me pause is if the president was within a couple of months of leaving office and his approval rating was at a really, really low rate so that it was obvious that s/he no longer had the support of the people and his/her party would not win the upcoming election. Even then, I would maintain the right of the president to make a nomination of his/her choice. That is not the case at the moment, Obama has majority support both nationally and internationally, and the Democrats have a better than 50% chance of winning in November.

          • j.a.m. says:

            Nothing would prevent Obama from appointing himself. But I was referring to judicial philosophy, not personal qualities.

          • j.a.m. says:

            The point is not to seek a nominee who holds the same opinions as a predecessor on issues of the day. (The justices’ personal attitudes ought to be irrelevant, because they ought to decide cases based on the law as it is, not as they wish it to be.)

            The point rather is to seek a nominee who evinces respect for the rule of law, support for democratic self-government, and appreciation for Constitutional limits, including the very limited role of federal judges. In Justices Scalia, Thomas, Roberts and Alito we find superb role models. Of the other sitting justices, unfortunately, four demonstrate unremitting hostility to these principles, and one is wobbly. In these present circumstances the choice is critical.

            As already discussed, the Constitution requires no action by the Senate, and in this case doing no harm would be in the Republic’s best interests. One can argue that a President should enjoy discretion to select his or her own subordinates within the executive branch, but that argument does not extend to judicial appointments.

            Democratic self-government is a cornerstone of the Enlightenment, but so-called “progressives” aren’t too keen on it because they regard ordinary citizens as backward and unprogressive (some citizens it seems even believe in God). As Obama once revealingly put it, ordinary citizens just cling bitterly to outmoded values. Or as you (Heather) put it, they simply fear change. (No, that’s not it at all — there’s plenty that needs to change. What people dislike is stupidity.)

            Society indeed evolves, and that’s why we have legislatures, initiatives and referenda, and finally, procedures for amending state and federal constitutions. (State constitutions have been amended around 12,000 times.) In a republic it is up to the people, not rulers, to change the law.

          • I think the choice of who is to be a justice of the SC is always critical – it’s no more or less so at the moment. It seems to me you think it is because you worry that a new justice may make decision different to what you think s/he should.

            There is no indication that Judge Garland isn’t fully qualified to be a SC justice. If he isn’t, a hearing will discover that and fully justify a vote against his confirmation.

            If the more liberal justices aren’t qualified to do their jobs, that’s the fault of those that confirmed them. While there are obviously those who disagree with them, there seems to be no indication that they aren’t qualified.

            The majority of USians these days want same-sex marriage to be legal and abortion to be available. Conservative Christians are no longer in a majority. They, of course, have every right to continue to maintain their beliefs, but they don’t have the right to force their beliefs on others. Same-sex marriage and abortion being legal doesn’t make them compulsory – those who don’t agree with those things can continue to not do them.

            And yes, it’s up to the people to change laws, but they elect representatives to do just that – represent their views when new laws are proposed. Holding a referendum over every law change is not only impractical, it would be wrong. In a select committee, representatives are presented with all sorts of evidence and other information to enable them to make the best decision for the people they represent. Most people simply do not know enough to make a fully informed decision on every proposed law. That creates the problem of lobbyists and the potential for bribery and corruption, and there need to be ways to ameliorate that.

            Some people do cling to stupid beliefs out of ignorance. I’m sure you know people like that yourself. Look at all the otherwise intelligent people (and yes, most of them are, embarrassingly, liberals) who think vaccination is a bad thing. We can’t allow the rest of the population, including their own children, to suffer because of their ignorance imo.

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