Voice of the Senate


Aaron David

A fourth generation Californian, befuddled.

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60 Responses

  1. Avatar greginak says:

    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.Report

    • Avatar Burt Likko says:

      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.Report

      • Avatar Don Zeko says:

        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.Report

      • Avatar Morat20 says:

        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.Report

  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,Report

  3. Avatar Chip Daniels says:

    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.Report

    • Avatar Don Zeko says:

      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.Report

  4. Avatar Stillwater says:

    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?Report

    • Avatar greginak says:

      The only personal solution is to be eternally above, looking down on those petty partisans. Those people who can’t see that BSDI is always the even handed, above it all answer.Report

    • Avatar Jaybird says:

      If you don’t like the whole “we need to make those people be more like us” answer (and there are a *LOT* of reasons to not like it… foremost being the whole “what if they try to make us more like them” monstrousness), the “let those people be those people over there while we’ll be us over here” answer is not so bad.Report

      • Avatar greginak says:

        Yeah there is a lot of us trying to force everybody else to be just like us. Why i’ve been known to go around handing out pamphlets and preaching my good word to get people to convert to the going xc skiing then get a burrito on sunday church.Report

      • Make them be like us? They’re already exactly like us in all respects — that’s the whole point of BSDI.Report

  5. Avatar trizzlor says:

    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.).Report

    • Avatar Stillwater says:

      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.Report

      • Avatar Chip Daniels says:

        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.Report

      • Avatar trizzlor says:

        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.Report

    • Avatar Kolohe says:

      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.Report

    • Avatar Jesse Ewiak says:

      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.Report

    • Avatar Don Zeko says:

      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.Report

  6. Avatar DavidTC says:

    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.Report

    • Avatar Morat20 says:

      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.Report

      • Avatar Michael Cain says:

        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.Report

  7. Avatar notme says:

    Miguel Estrada

    I guess filibustering nominees is ok.Report

    • Avatar DavidTC says:

      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!Report

      • Avatar notme says:

        But the Dems say that every nominee should get a vote except when they don’t really mean it. Between this and the Bork case, I could care less.Report

        • Avatar Don Zeko says:

          Bork got a vote. He lost. Then Reagan nominated another conservative jurist and he was easily confirmed. There’s just no comparison.Report

          • Avatar notme says:

            Sure, after he was slandered and his reputation trashed. Despite Dems calls for civility.Report

            • Avatar Don Zeko says:

              You need to slow that moving target down a bit. I think it’s redshifting.Report

              • Avatar notme says:

                Moving? Miguel Estrada didn’t get a vote and Bork was trashed, so any calls by the Dems for civility and votes fall on my deaf ears.Report

              • Avatar greginak says:

                Maybe people who lament Bork should talk about his actual views and his behavior during watergate. In the past i’ve seen him touted as a martyr w/o any knowledge of his views.Report

              • Avatar notme says:

                Are you that desperate to excuse Teddy’s lies? Don’t forget to call for more civility.Report

              • He was also awful on the first amendment (both freedom of expression and separation of Church and State), equal protection, the Civil Rights Act, and privacy (e.g Griswold). But bringing all that stuff up apparently counts as trashing him.

                Calling Sotomayor a racist, on the other hand, is just good political give and take.Report

              • Avatar notme says:

                Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy … President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.

                From Dear Teddy

                Calling Sotomayor a racist, on the other hand, is just good political give and take.

                After Bork, I could care less. Dems call for civility but it’s just lies.Report

              • Avatar greginak says:

                Defend Bork’s views and actions if you want to make him a martyr.Report

              • Avatar Zac says:

                I could care less

                But apparently not so much less that you’d refrain from posting the same retort eight or so times across multiple threads.Report

              • Avatar notme says:

                The threads are all discussing essentially the same thing and different folks got the same answer. I could care less.Report

              • Avatar Zac says:

                Sure, but spamming pretty much the exact same line across multiple threads like that? That seems lazy even for you. Surely the right has more than just one talking point on this issue that you could be regurgitating. Spice it up a little, man.Report

              • Avatar notme says:

                The answer will change when Dems stop whining about votes and civility.Report

              • Avatar Burt Likko says:

                Let’s address the substance of the argument, not the person making it.

                As with yesterday, no comment policy violation yet. Just a reminder.Report

              • Avatar Chip Daniels says:

                How ironic, that of this list:

                Women would be forced into back-alley abortions,

                Blacks would sit at segregated lunch counters,

                Rogue police could break down citizens’ doors in midnight raids,

                Schoolchildren could not be taught about evolution,

                Writers and artists could be censored at the whim of the Government, and:

                The doors of the Federal courts would be shut on the fingers of millions of citizens

                Are things which various portions of the Right have actually either vocally supported, attempted, or put in place in the jurisdictions in which they hold power.

                My God, but Teddy was prescient. Thanks for digging up that quote.Report

              • Avatar notme says:

                Teddy was many thing but not prescient, more like a drunken womanizer. Argumentum ad absurdum, I thought you’d be more clever than to fall for that.Report

              • Avatar greginak says:

                Yeah, his actual legal views would be repellent to not just liberals but also to plenty of conservatives and libertarians but somehow that just vanishes into the mist.Report

              • Avatar notme says:

                Sure, his views were so repellent that Reagan nominated him.Report

              • Avatar Chip Daniels says:

                his views were so repellent that Reagan nominated him

                See, we find accord at last, Kumbaya!Report

              • Avatar notme says:

                Are you even trying, because you are spouting nonsense. Reagan had other nominees that the Dems liked.Report

              • Avatar Zac says:

                Don Zeko: You need to slow that moving target down a bit. I think it’s redshifting..

                Goddammit, Don, you just made me shoot scotch out my nose. That shit burns, dude.Report

            • Avatar El Muneco says:

              Truth is an absolute defense against slander/libel. As a lawyer should know.Report

          • Avatar Marchmaine says:

            Then Reagan nominated another conservative jurist and he was easily confirmed

            That conservative jurist was Anthony Kennedy.Report

            • Avatar Don Zeko says:

              Who was at the time perceived as more conservative than he turned out to be, and who is substantially more conservative than anybody a Democrat would have nominated.Report

              • Avatar Burt Likko says:

                Some would argue that this was the political process working as intended: Robert Bork was too conservative for the Ted Kennedys of the Senate, and the political brawl over his nomination forced Reagan to move towards the center — but Ted Kennedy still had to accept someone who was still well to the right of the sort of nominee he’d have preferred.Report

              • Avatar Don Zeko says:

                That “some” would include me! I don’t think McConnell is wrong to want to influence the judicial philosophy of the nominee; he can and should do that. But he’s proposing something far beyond influence.Report

    • Avatar DavidTC says:

      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’.Report

      • Avatar notme says:

        Meh, either Dems think ever one should get a vote and not be filibustered or they don’t. I guess consistency isn’t their strong point,Report

  8. Avatar Burt Likko says:


    This dude is the Democratic John Roberts. A more obviously qualified nominee I dare you to name. A more obviously qualified nominee whose elevation ought not be obstructed by partisan politics need not be found.Report

    • What, the guy who defended Jeffrey Skilling? Goddamn tool of the 1%. Screw him. (See, if we say that enough, the GOP will pick him themselves.)Report

      • Avatar Burt Likko says:

        Don’t read too much into positions a lawyer takes on behalf of a client. Advocates sometimes argue for things they don’t personally prefer or on behalf of people they don’t particularly like.Report

        • No, no, no. Sri is 100% pro-plutocrat, the number one Koch butt-kisser in America. His first week he’d get together with Thomas and Alito to strike down the progressive income tax. The GOP would be crazy not to put him on the Court.Report

    • Avatar Kim says:

      The Ax said that Scalia actually asked him to get Kagan on the court (this was before Sottomayer’s nomination).
      My first thought is “Only Scalia” (both having the hubris to mention it, and the complete and utter confidence that he could be taken seriously because he was that much of a conservative battleaxe).Report

    • Avatar Stillwater says:

      Burt, the first pick is definitely NOT gonna go thru. For tactical reasons, if Big O really wants this guy, he needs to put him further down in the que, imo.Report

  9. Avatar North says:

    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.Report