Preparing For The Nomination


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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171 Responses

  1. Avatar LeeEsq says:

    Sacrificial lamb?Report

    • Avatar Don Zeko in reply to LeeEsq says:

      That’s why I suspect it won’t be Srinivasan. The poor sap that gets nominated first will most likely not become a supreme court justice, but will set the tone and terms of the PR battle over the vacancy. If Srinivasan is as great as Counselor Likko says, then it seems to me that the smart move is to nominate him after a first nomination is defeated. Then perhaps marginal Republicans get to say they pushed Obama to the left, Obama gets to look reasonable and centrist for putting forward such an imminently qualified nominee, and the court gets a ninth vote.Report

  2. Avatar Murali says:

    Am I wrong to somehow feel proud that one of my people (a Tamil Brahmin) is very likely to be the first Asian supreme court justice?Report

    • Avatar Burt Likko in reply to Murali says:

      Not at all! Seeing someone who looks like you having a seat at the table of power is important — it means that the club isn’t closed, that you and people like you are welcome participants in the system.Report

    • Avatar greginak in reply to Murali says:

      How well do you deal with disappointment?Report

    • Avatar Mike Schilling in reply to Murali says:

      Wrong only in thinking “very likely” (unfortunately). I’m very happy about the tradition that Jewish justices have established, and only partly because it so pisses off Pat Buchanan.Report

    • Avatar Vikram Bath in reply to Murali says:

      Murali: Am I wrong to somehow feel proud

      I have similar feelings all the time that I don’t know how to judge either. Somehow, I can’t feel nothing when something happens for one of us. At the same time, I can feel miffed when others suggest that I should somehow feel proud that Slumdog Millionaire was a popular movie. Or that people are doing yoga or something. It seems like I am applying a double-standard in enjoying the relationship when its convenient for me, but not when others bring it up first.Report

      • Avatar Guy in reply to Vikram Bath says:

        I dunno. I think you’re allowed to have whatever emotions you have, regardless of the circumstance, and other people don’t get to tell you what they should be. That seems equally true whether they’re telling you to have a particular emotion or to not have it.

        edit: I have, of course, become aware of the irony in this comment immediately after posting it.Report

  3. Avatar trizzlor says:

    Now that it’s either a Trump primary or a Trump/Cruz contested convention, do you think the GOP is more likely to negotiate with Obama on the nominee?Report

    • Avatar Burt Likko in reply to trizzlor says:

      Yep. They won’t trust a hypothetical President Trump to nominate an actual conservative. Srinivasan is, as my link shows, about as non-ideological as a Democratic nominee is ever going to be.Report

      • Avatar greginak in reply to Burt Likko says:

        I’ll disagree and go with a loud No. The R’s in the Senate are going to want red meat for their own elections and keep up the spirits of R’s unhappy with Trump. They have to show something for this cycle and likely know they are boned with candidate Trump. That it will just delay a D prez getting a SC nominee wont’ matter as much as winning now and getting all the mileage they can in this election.Report

        • Avatar Stillwater in reply to greginak says:

          From my pov, the calculus will be based on the net-benefit gained by obstructing Obama til the general, and since they’ve created this whole Trumpe Fiasco by their currently operative decision-making I’m sure they’ll get the next move wrong.

          No matter what they decide.Report

          • Avatar greginak in reply to Stillwater says:

            If they back down from their very strongly stated stance of “none shall pass… or even get hearings…or even a light lunch at the cafeteria” it makes them look weak and spineless. That kills them in this cycle and tees up the attacks by Trumpy on them. That doesn’t do them any good now even if the long term calculation may be catty wumpus.Report

            • Avatar Stillwater in reply to greginak says:

              Then that’s what they’ll do!!!Report

              • Avatar Jaybird in reply to Stillwater says:

                Yeah, this seems somewhat obvious.

                Had he said “we will follow the process and my colleagues have already explained to me that they’re looking forward to the hearings”, my response would have been something to the effect of “holy crap, he’s going to block the justice until after the nomination…”

                Instead he said “Donors, me and my senators will need you to donate, donate, and donate some more. Please donate to us personally as well to our superpacs.”

                Which tells me that he’ll crumple as soon as the numbers* look good.

                *and by numbers, I mean money rather than polling.Report

            • Avatar Burt Likko in reply to greginak says:

              Well, if that’s right, then they’ve not only shot themselves in the feet, they took aim first.Report

              • Avatar greginak in reply to Burt Likko says:

                Good gun owners only raise their weapon when they mean to fire it and they aim carefully.Report

              • Avatar Burt Likko in reply to greginak says:

                The whole #NoHearingsNoVotes thing reeked of “Ready, Fire, Aim” and IMO still does.Report

              • Avatar trizzlor in reply to Burt Likko says:

                My pet theory is that Scalia passed mere hours before the GOP debate and McConnell had little time to come up with a coherent party diktat. Just another bizarre turn in this insane primary.Report

              • McConnell could have said nothing at all about replacing Scalia, which is, after all, customary right after someone dies. If anyone had asked, he could have said, quite rightly, “This is a time to remeber Justice Scalia. That’s a question for another day.” Instead, in addition to painting his party into a corner, he looked like a low-life for immediately politicizing Scalia’s passing. A totally unforced error.Report

      • Avatar Aaron David in reply to Burt Likko says:

        I rather doubt it @burt-likko, the R’s are counting on a couple things 1. Trump wins, they still hold the senate. 2. HRC wins with R help, they keep the senate. HRC wins, they might or might not keep the senate. The odds are in their favor.

        They get to Advise and Consent as long as they keep the senate, so its up to them at that point. It’s not even a red meat issue, its their job.Report

        • Avatar trizzlor in reply to Aaron David says:

          But here again they’ve shot themselves by putting so much weight on the next president deciding. Had they stuck with stalling behind the scenes, they could have continued that in an HRC admin or maybe switched tactics to contest her legitimacy. Now HRC is armed with videos of each member saying “let the next president decide!” which puts much more wind at her back.Report

          • To get around that, they’d have to invent some reason that Hillary’s election didn’t mean anything, and have their tame pundits all get behind it. Inconceivable!Report

            • Avatar nevermoor in reply to Mike Schilling says:

              If the goal is to get to where GOP senators have no rhetoric available (however strained/illogical), then I’ll be happy to place bets on the goal never being achieved.Report

              • I got it.

                Trump is the disaster we all expect, the D’s get a filibuster-proof Senate, and the nominee is confirmed 60-40 in good order. But her being confirmed without a single R vote taints her forever, since Hillary rammed her through in an illegitimate, partisan way.Report

              • And any future 5-4 decision in which this future nominee cast the perceived “swing” vote would somehow be a lesser form of law and therefore ignorable whenever it’s holding became too inconvenient.

                (You know, I don’t like the Hobby Lobby decision very much, but you don’t see me acting like it’s not the law just because it was a 5-4 decision.)Report

              • I do. As a form of silent protest, I have steadfastly refused to impose my religious views on any of my co-workers, especially while in the lobby.Report

              • Avatar Morat20 in reply to Burt Likko says:

                That seems a Republican thing, to be honest. I mean, Democrats were unhappy about Bush v. Gore, but even among those that still gripe that “Gore actually won”, the vast bulk of them (and most especially those in office or running the party) accepted that Bush was President. That might have thought the SCOTUS decision was BS, that Gore won the Florida vote, but they also accepted that…SCOTUS got to make the call, even if they crapped out a steaming pile of horror that historians will delight in hanging around their neck.

                It seemed to have started with Clinton — the belief that Democratic presidents, at least, were illegitimate in some way simply by virtue of their party identification.

                OTOH, that may spreading — the primary process on the Democratic side has brought up a bunch of of “Democratic candidates in those states don’t count….” which is very similar. On the gripping hand, that’s just in the midst of a primary so that might be seen more as grasping at excuses and not so much a basic belief regarding opposition.

                So maybe not just a GOP thing.Report

        • Avatar Morat20 in reply to Aaron David says:

          The Senate map is highly unfavorable for them to win the Senate, which should be part of their calculus but is apparently not.

          Then again, this Congress has been remarkably short-term oriented. Government shutdowns, debt ceilings, and now this? They seem to pick fights for the sake of the confrontation, with no thought towards what they wish to win, or how the fight gets them there.Report

        • Avatar Don Zeko in reply to Aaron David says:

          In scenario 2, that assumes that they can maintain their blockade through a 4-year presidential term rather than the remaining 9 months of the Obama Administration. Even for a congress this dedicated to obstruction and dysfunction, that’s a big assumption.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        Exhibit A: Ilya Somin, writing from Volokh Conspiracy:

        Flawed as his judicial philosophy might be in some ways, Garland is far preferable to the sorts of justices that Trump is likely to appoint, who might well carry out his priorities of making it easier to use libel suits and other tools to suppress his critics, and undermine constitutional property rights. Such justices are also highly unlikely to have any real respect for other important constitutional rights, or to be committed to originalism. … [¶] Ultimately, GOP senators may have a reasonable justification for blocking the Garland nomination until the election, based on opposition to his judicial philosophy. But it would be irresponsible to leave the door open for a Trump nomination. And Garland is also preferable to what we might well get in the likely event of a Hillary Clinton victory.

        In other words, to his fellow right-wing Court watchers, Prof. Somin warns: it could have been, and almost certainly will be, a LOT worse than this.Report

        • Avatar Morat20 in reply to Burt Likko says:

          I love how openly he accepts the game. He says Garland is great, but by Obama nominating him we can be pretty certain he’s sekretly super liberal, and thus opposing him is okay. Just Cleek’s law, right out on the table.

          Which is fine and all if that’s the rules we’re playing by, but of course the Senate is claiming the whole “don’t vote” thing is about being non-partisan, because clearly we should let the people speak and NOT letting the people speak is just too partisan.

          And then held Garland up, specifically, as an example of the sort of non-partisan example Obama would never pick. (Hatch has to be getting flak about that!).Report

          • Avatar nevermoor in reply to Morat20 says:

            I’d be pretty disappointed if Garland got easily confirmed (i.e. the jujitsu strategy)

            Seems like his term will be just long enough to expire post-HRC presidency when there could well be an overwhelming national urge to switch parties just for the sake of doing so.Report

  4. Avatar Burt Likko says:

    If the GOP is really looking at a Trump candidacy, the Supreme Court will diminish in importance as a campaign issue. Donald just sucks all the air out of the room. So GOP Senators who know that they are hosed with a Trump nomination, should rationally prefer to confirm a nominee who is close to the center, like Judge Srinivasan, rather than wait for president Clinton to use her political mandate to nominate someone much less acceptable to them, like (wildly speculating here) Mary Buonauto or Tammy Baldwin.

    Well, then again, we’re talking about the same people who convinced themselves that Romney was going to ride a landslide into the White House four years ago. So perhaps you’re right that we should not underestimate their potential to make a dramatically wrong assessment of the landscape of actual possibility and then go all-in on it.Report

    • Avatar greginak in reply to Burt Likko says:

      Well you did you use the term “rationally” in regards to what the R’s are going to do. Really?

      What will talk radio and the fired up base think and do if the R’s cave on acknowledging the existence of any SC candidate. That should answer the overarching question.Report

  5. Avatar Burt Likko says:

    Getting back to the OP, “Garland” will be a lot less challenging to rhyme.Report

    • Avatar Don Zeko in reply to Burt Likko says:

      I think his age and non Sri-ness tends to support my sacrificial lamb reading. If so, I applaud the guy’s courage.Report

      • Avatar Burt Likko in reply to Don Zeko says:

        I’ve little choice now but to agree with this.

        But since I think the GOP senate will back down on the #NoHearingsNoVotes thing, I have to simultaneously condemn Obama’s lack of courage. Judge Srinivasan would have been a better pick, no disrespect to Judge Garland intended (Garland is fearsomely smart and well-respected too), if only because Srinivasan is twenty years younger than Garland.

        The redemption for Obama would be if Srinivasan were offered the spot, but chose to defer until the political landscape offered him a less rocky path onto the High Court, presumably on the strength of a Hillary Clinton nomination to a Democratic-controlled or at least 50-50 Senate. Which I suppose isn’t out of the question, but it’s a big gamble on his part that President Clinton would nominate him at all; she’ll have every incentive imaginable to go further to the left than him.Report

        • Avatar Francis in reply to Burt Likko says:

          I disagree. I think that Republican senators are facing a huge credibility problem. Yes, Hillary can add a line in her stump speech about up-or-down vote, and individual Democratic candidates running for Senate can do the same. But I’m not convinced that anyone who is undecided about their candidate or even whether to vote will be persuaded by that line of attack. And, having made their stand about letting the people decide, no Senator can take the risk of shifting on that issue without risking losing far more support than he could possibly gain.Report

        • Avatar Morat20 in reply to Burt Likko says:

          Well, I think Garland acknowledges the political landscape in a way that Srinivasan doesn’t.

          Which is that the GOP threat to simply never hold a vote isn’t exactly a bluff. It may not be a threat they can sustain, but they’re under real pressure to try.

          Garland’s there as a sacrificial lamb. If the GOP blinks, you’ve still shifted the court a justice to the left. A solid win, you’ve replaced a hard-core conservative with a noted centrist.

          If the GOP holds firm, you nominate a more liberal candidate with a similarly powerful record — in August (Garland will withdraw when it becomes clear he won’t get a vote. Or even a hearing). It becomes a centerpiece of your party’s campaign, right as GOP Senators facing an ugly map run into general election voters and not primary voters — and the GOP position is not a popular one.

          You point out the GOP is now obstructing a second, clearly qualified candidate. They canned the previous one despite openly praising him before. The Democrats get a solid campaign issue to increase turnout — and GOP Senators increasingly feel the need to change the subject — and the only way to do that is fill the SCOTUS vacancy.

          Odds are, Srinivasan still doesn’t get in — but this has a much better chance of getting him in than nominating him first. You let Garland soak up the obvious attacks, which will look wildly hypocritical and is better fodder for the election. (Many of those attacks might work on the first candidate, but repetition makes it look more obstructionist).

          So your outcomes are: Nobody gets on the court — in which case Srinivasan wasn’t ever going to do it AND you get solid election fodder. Or Garland gets on the court, in which case you’ve actually filled the vacancy and improved (from the Democratic perspective) the court, a solid win. Lastly, Garland gets rejected and Srinivasan passes — and you still get election fodder and an even better candidate.

          Srinivasan could still be decent election fodder if he was sidelined, but I think Garland makes for better ads.Report

        • Avatar nevermoor in reply to Burt Likko says:

          I’m not sure Sri is liberal enough to be the right choice by HRC with a Democratic senate.

          I’d be hoping more for the next Brennan.Report

      • Avatar Michelle in reply to Don Zeko says:

        I agree–a sacrificial lamb who will still maintain his powerful position on the DC Circuit. It will be interesting to see what kind of knots Republicans and their rightwing support groups tie themselves in trying to oppose a moderate, respected white guy known for his brilliance and relative judicial neutrality, who many of them voted to approve for his current position.

        I think it’s a good move on Obama’s part to point out the Republicans are gumming up the system for the sake of gumming up the system, despite being presented with a well-qualified candidate who’d easily be approved under normal circumstances. It’s not as if I needed any more reason to hate the GOP as currently constituted, but they’ve succeeded in guaranteeing that I hate them even more.Report

        • Avatar El Muneco in reply to Michelle says:

          Cynically, given his age, he’d have to believe that if it wasn’t for penal substitutionary atonement, he wouldn’t be #1 on the list. President Clinton certainly would go for someone more consistently left-leaning and much younger.

          So, unlike what the miniskirt brigade at Fox might say, he’s not sacrificing his career prospects. He’s very unlikely to have been the nominee in other circumstances, and he still gets to go back to his old job.

          Like a veteran swingman, you can plug him into the rotation for a couple of years without losing too much, and he’s perfectly happy to work mostly out of the bullpen if you don’t.Report

    • Avatar trizzlor in reply to Burt Likko says:

      Sen. Orrin Hatch (R-UT) told Newsmax last week that President Obama “could easily name Merrick Garland, who is a fine man” to the Supreme Court.

      But he quickly added, “He probably won’t do that because this appointment is about the election. So I’m pretty sure he’ll name someone the liberal Democratic base wants.”

      Time to invest in popcorn futures.Report

      • Avatar Doctor Jay in reply to trizzlor says:

        I couldn’t agree more. Obama handles the politics of nominations better than anyone I’ve seen.

        My analysis is that he feels that he can live with Garland being a justice, if it takes away a voting/fundraising issue for Senate Republicans. And that the politics of a refusal to consider/vote on Garland will break heavily his way. Which makes sense.Report

        • Avatar Don Zeko in reply to Doctor Jay says:

          The politics, yes, but Obama’s sluggishness on nominations has been a huge unforced error throughout his presidency.Report

          • Avatar Morat20 in reply to Don Zeko says:

            I think this sort of….political Obama’s best area. He’s basically spent his last term trolling the GOP this way. Offering big bargains, juicy incentives — and using their reflexive rejection to make them look worse. I think his calculus is basically “They will reject literally anything I offer at first, even if it’s their own idea” so he uses the first offer to appear ‘moderate’ (he’ll offer stuff that’ll infuriate his own base, in fact, to ensure the coverage notes the sacrifices he’s offering — it makes Republican intransigence even more politically painful. But they do it anyways).

            So his playbook seems to be to make a solid, reasonable offer that especially appeals to the chattering classes and allows him to extract the maximum amount of gain from the GOP’s kneejerk refusal. Support he uses whenever they’re forced to actually come to the table, to get a better deal.

            Garland seems the same thing. Pick a candidate that looks so good that the GOP’s “NO NEVER NO VOTES” looks as bad as possible. When the candidate withdraws, nominate a more liberal one and let the pressure on the GOP force them to accept him or her. It’s a weird way of negotiating, but negotiating with a party subject to Cleek’s law is….a challenge. The usual methods don’t work well.Report

            • Avatar Kolohe in reply to Morat20 says:

              Obama has made the Republicans look so bad, they don’t have every single House and Senate seat and Governorship and State Legislature – just the majority of them.Report

              • Avatar Morat20 in reply to Kolohe says:

                And that has what to do with what? What President ever dictated state governments, exactly? Or had that much pull?

                Obama had sizeable coattails when he was on the ticket — which is all a President can ever do.

                I was talking about finessing the crap he’s been given by the GOP (debt ceilings, government shutdowns, budget fights)Report

              • Avatar Kolohe in reply to Morat20 says:

                Right, the debt ceiling debate and government shutdown worked out well for Obama and the Democrats.Report

              • Avatar Morat20 in reply to Kolohe says:

                Did the GOP get what they wanted out of either?

                I don’t recall them doing so, no.Report

              • Avatar Kolohe in reply to Morat20 says:

                They got the Senate.Report

              • Avatar trizzlor in reply to Kolohe says:

                That’s their goal?! Then sure, the GOP has been very successful under Obama in securing Congressional seats and then accomplishing none of their agenda. That’s why they’re having such a wonderfully rich primary contest.Report

              • Avatar Autolukos in reply to trizzlor says:

                Goal #1 for most politicians is to win elections; 2010, 2012, and 2014 have turned out damned well for an awful lot of Republicans not named “Romney”.Report

              • Avatar Stillwater in reply to Autolukos says:

                The irony, of course, is where the GOP is right now.Report

              • Avatar Autolukos in reply to Stillwater says:

                More likely than not to retain both sides of Congress in spite of a bad Presidential nominee and an unfavorable Senate map? They will probably get over it.Report

              • Avatar Stillwater in reply to Autolukos says:

                Nominally, of course they will. 🙂Report

              • Avatar Morat20 in reply to Autolukos says:

                That seems to be an interesting artifact to the way we arrange votes by area.

                IIRC, Democrats have started winning more votes for House and Senate (overall), but not actually winning control. I know for certain there’s been at least one recent election where that was the case with the House at least.

                If that’s the case, then Republicans are winning due, basically, a quirk of history — the states themselves.

                It’s not like any party can redraw the shapes of the states, can they? If Republicans control 30 legislatures and the Democrats 20, but Democrats actually represent 10% more people……Report

              • Avatar Jaybird in reply to Morat20 says:

                This is why it’s so very important for Democrats to move out of their areas and into places like Kansas, North Dakota, Wyoming, and Idaho and start voting!Report

              • Avatar Autolukos in reply to Morat20 says:

                In the last 10 elections, Republicans have won control of the House 8 times. In two of those (1996 and 2012) elections, Democratic candidates won more votes overall (though 1996 was basically a tie; Democrats only won 60,000 more votes nationwide and ended up as the minority in a 227-206 split, whereas in 2012 they won 1.4 million more votes and the split ended up at 234-201). So there seems to be a, possibly growing, disadvantage here, but Republicans have just won more votes in most of those elections.

                In the Senate, strength in low-population states certainly helps the Republicans make the most of their votes. If Democrats want to advance their agenda at the national level, of course, finding a way to compete for Senate seats in more states would probably be helpful.Report

        • Avatar trizzlor in reply to Doctor Jay says:

          Indeed, and I’m not sensing a lot of enthusiasm from the base to block this guy given the primary turmoil. As usual they’ve been strategizing against Obummer, the dummy who would appoint a vicious, leftist, far-left, radical liberal activist.

          By far the most typical comment in the usual places is “Draw out the hearings and then approve him quickly if Hillary is elected” which – transparent opportunism aside – ignores the fact that Obama can *withdraw* his nomination and that there are still, you know, Democrats in Congress that can block the vote.

          The only thing that would make this sweeter is Ted Cruz appointing himself in charge of blocking the nominee in the Senate. Then we’d know for sure that Garland will be up on that dais.Report

          • Avatar Morat20 in reply to trizzlor says:

            There’s also the fact that if they approve him, well…it’s still a win.

            The guy’s not that centrist. He’s to the left of Roberts and Kennedy, for instance, if to the right of the Notorious RBG. It’s not like he’s Roberts.

            The most you can do is move the court’s swing vote one justice — nominating someone twice as liberal won’t move the new swing vote further.

            Garland replaces a far right jurist with a center left jurist. It changes the center of the court just as much as if he’d nominated The World’s Most Liberal Judge.

            Long-term, there’s downsides — he’s older (so he won’t be on the court as long), and “more liberal” or “more conservative” do have long term effects on shifting the political gravity around, for sure.

            As a justice, taken in isolation from political events, he seems a solid enough choice. I’ve not seen anything about him that seems disqualifying or worrisome. He’s just, basically, not as liberal as he could be AND the court’s already a bit too white and male, so that’s a lost opportunity.

            But you nominate looking at the Senate you have, not the one you wish you had.Report

        • Avatar Stillwater in reply to Doctor Jay says:

          Doctor Jay,

          My analysis is that he feels that he can live with Garland being a justice, if it takes away a voting/fundraising issue for Senate Republicans. And that the politics of a refusal to consider/vote on Garland will break heavily his way. Which makes sense.

          For the most part, I agree. Obama could live with Garland if push came to shove. But personally I don’t think Obama thinks Garland will go thru – the time isn’t right yet. The GOP is still all Obstructionist and Cleek’s Lawyerists on the presupposition that doing so will be (in my mind anyway) a last ditch effort to save the GOP from Trumpism. That dream is shattered (or shattering, anyway) and the dim light of a new era is dawning on them. They’ve poisoned their own well. But the dissolution isn’t quite complete yet – where they either lick their wounds and appoint the next nominee, or go down in a blaze of Hell Fire Missile Strikes and run third party on the “we didn’t let Obama appoint Scalia’s successor!” ticket.

          ETA In other words, it’s over for them, and Obama is waiting to see which sword they want to die on.Report

          • Avatar Stillwater in reply to Stillwater says:

            And along those line (the “which sword do they die on” lines) I heard an NPR interview with Erick Erickson in which he proposed the Grand Ole Plan to have Cruz run third party in the general in order to (get this!) prevent HIllary from getting a majority of EC votes, thereby putting the choice of President in the hands of Paul Ryan (or something or other, I got lost in the circuitousness of the argument, which began with his desire for a brokered convention with Paul Ryan as GOP nominee, or something…).Report

  6. Avatar Saul Degraw says:

    And Garland is the nominee. I think that we are going to see the GOP fall over themselves with objecting to a non-controversy.Report

  7. Avatar j r says:

    The Senate has a couple of jobs and voting on nominees is one of them. Should we be surprised that they won’t do it? The House has one real job: pass a budget. And yet, Congress hasn’t passed an actual budget since 2006.

    My going theory is that you can have properly functioning government (warts and all) or you can have politics as a spectator sport (which is basically all warts), but you can’t have both. Seems that we’ve made our choice.Report

    • Avatar Aaron David in reply to j r says:

      I’m sorry @j-r but what part of the constitution says they have to vote on nominees? Or for that matter, how many justices there are supposed to be? The only thing I can find is “Advise and Consent.”

      As far as a functioning gov’t, I am pretty happy with the current stalemate. And with such a divided electorate, I think that the current situation is beneficial.Report

      • Avatar Burt Likko in reply to Aaron David says:

        Well, this is right, the Senate gets to do what it wants, or not do what it doesn’t want.

        And there are precedents for both voting on, and refusing to vote on, nominees offered by Presidents in the closing days of their terms, with a variety of permutations of partisan control of either end of Pennsylvania Avenue. It’s a question of politics. Chief Justice John Marhsall, the greatest jurist in our nation’s history, was himself a “midnight appointee” who was seated on the Court during John Adams’ lame-duck period. Barack Obama is not yet (technically) a lame duck: he will become one on November 8, 2016 although we also note that he will remain President until January 20, 2017 and he holds the full power of the Presidency until noon of that day.

        The number of Justices on SCOTUS is determined by Congress. 28 U.S.C. § 1. The Court can function, indefinitely, without a ninth Justice, but that is not an optimal state of affairs for it, particularly because tie votes of the Justices are legally problematic, not to mention unfair to litigants because cases for which majorities cannot be found are frequently set for re-argument in the next term at a cost of delay and expense. And that’s before we get to the larger issue that the Court’s resolution of disputes affects how other courts resolve other similar disputes which can be a big deal when applications of individual rights and interpretations of ambiguously-worded statutes are allowed to remain indeterminate.

        If we wait until the next President takes office in January of 2017 before a nomination is considered, every close call in the complete 2016-2017 Term will be put on for re-hearing. Keep in mind that the shortest a confirmation has happened in recent years has been about a month (C.J. Roberts), and given the partisan gridlock there’s every reason to anticipate that confirmation would take longer than that even if the first nominee is confirmed. So dozens of close cases likely wouldn’t be decided until the 2017-2018 Term.

        The longer there is a vacancy on SCOTUS, the less able the Courts as a whole are to do their jobs. SCOTUS, the twelve Circuit Courts, the 94 District Courts and a handful of other specialized Federal trial-level courts, and even the myriad state, administrative, and other sorts of courts, because ambiguities in the law are going to be floating around out there and every year we learn more about how our law is evolving by way of SCOTUS decisions.

        Yes, we can limp along for a while until the political process resolves. The Courts will do what they must to render justice. And at the same time, no, we can’t sustain the present state of affairs forever. We need a full Court.Report

        • Avatar Aaron David in reply to Burt Likko says:

          A full court, huh? would that be FDR’s full court, or George Washingtons five?

          I am not trying to be snarky here, but one of the problems right now (as I see it) it saying that something has to be done, when no, nothing has to be done. You would like, and think it more equitable for 9 justices to be active on the court, I would like an even match between Liberals and Conservative, no matter the numbers. Mitch McConnell would like a greater number of conservatives, while Obama would like a greater number of liberals. See, we all have diferent wants, and needs are subjective here.

          Right now, McConnell is gambliing on who the next president will be, and what leverage he will have with them. Right now, Obama is a lame duck president with so-so approval ratings. Great with his party, poor without. Not much leverage one way or another. This might also be a way of diffusing one of Trumps possible points, that McConnell just keeps doing what the pres. wants, against the people. That is something I approve of pushing back against. A lot of moving pieces here.

          Also, I like the idea of the Senate (and the House for that matter) picking up all these little bits and pieces of their jobs that have fallen away over the years, like saying no to any judicial picks or shutting down the gov’t over the budget if someone like Trump is elected, to hem him in a bit.Report

          • Avatar Burt Likko in reply to Aaron David says:

            An odd number, for tiebreaker purposes. Right now, the entire work of overseeing the Judiciary is set to be divided amongst nine justices. It doesn’t have to be that way, but Congress has decreed that it be so. We could go down to 7, by attrition, if Congress so decided. That would be okay with me, but that is not how the law stands right now.Report

          • Avatar Stillwater in reply to Aaron David says:

            Right now, McConnell is gambliing on who the next president will be, and what leverage he will have with them.

            I actually think that’s one of the minor moving parts (tho obviously people disagree). I think his gamble was that running a Cleek’s Law Full Frontal Obstuction on Obama the Liebrul Deceiver would create an Establishment Candidate Surge sufficient to overtake Trump. I think he lost that bet. Now he’s stuck with a very precarious political situation which it’s difficult – not impossible – to see him winning.Report

            • Avatar Aaron David in reply to Stillwater says:

              That could be it also, I don’t think so, but sure, why not. I personally think Cleeks law is kinda a joke, but whateves.

              Right now we have three likely (FCVOL) results for the election. 1. Republican win (Cruz/Trump) He still has the Senate. 2. Hildog wins, no legs. McC still has the senate. Hildog wins with legs. Only then does he loose the senate.

              Its not a bad gamble.Report

              • Avatar Stillwater in reply to Aaron David says:

                I think you’re putting principle in front of politics, here. And that’s OK! It’s better to believe that politicians are principled, ya know?

                From where I sit, McConnell’s interest in this issue is purely political: he didn’t need to go on record saying that the Senate wouldn’t allow hearings, let alone a vote, on SC nominees. He coulda just done it. Instead, before Scalia’s body was cold he stated unequivocally that the current Senate wouldn’t engage in hearings or votes and that only the next President would pick Scalia’s replacement. Those words, in my minds, are pure politics (99.44%) and no principle (the remainder).

                Which begs the question: what was he trying to achieve by making a political issue outa an administrative one, if the issue was principled? I’ve wracked my brain, but the only thing I can come up with is what I said: to motivate GOP voters.

                I could be wrong, of course…Report

              • Avatar Aaron David in reply to Stillwater says:

                Ok, got you @stillwater I was misreading you above, well not about Cleek, but the rest.

                Of course it is political and not principal. McC is a seriouse political animal, having survived all kinds a things. And to that point, I think he might have seen the rise of Trump when everyone else thought it a joke, motivate GOP voters like you said, could be some bad golf bet with Reid. I don’t know. But I can think of a few ones, which I outline above and here. Point is, of course its politics. Its what he was hired to do.Report

              • Avatar Stillwater in reply to Aaron David says:

                Point is, of course its politics. Its what he was hired to do.

                If you don’t mind my continuing on (I’m on a roll)…

                It’s not politics as much as game theory. He looked at the state of play and realized (well, believed anyway) that his (party’s) best chance for success required taking a heavily weighted risk, and then took it. And if we don’t want to go with the (more rational) game theory route, we’d say that desperation compelled him to act! It was a heavy risk, one motivated BY Trump’s crushing of establishment GOP candidates. And now that the gamble didn’t pay off, he’s stuck behind the eight ball trying to look like he planned to snooker himself.Report

              • Avatar Aaron David in reply to Stillwater says:

                That assumes there is only a single reason to do this.

                But keep going, I’m diggin it, tu es en fuego!Report

              • Avatar El Muneco in reply to Stillwater says:

                I get your thinking. He’s not stupid, so he has to know that he would be fulfilling the letter and spirit of “advise and consent” even better by convening hearings, and having the committee members all with Cinemax on their laptops. There has to be a reason he risked blowback, and that’s because he thought the upside was worth it.

                Then you remember what everyone thought of the possibility of containing Trump at the time, and it makes a fair bit of sense. Also, there was a fair amount of support, to the tune of “we don’t care if you lose your seats, even lose control of the Senate, just never confirm anyone that Soetero nominates” – which doesn’t make a lot of sense, but it was another voice in his earbud.Report

              • Avatar trizzlor in reply to El Muneco says:

                >>“we don’t care if you lose your seats, even lose control of the Senate, just never confirm anyone that Soetero nominates”

                I’ve actually heard this a lot from my Republican friends and it kinda make sense. Imagine you are a Democrat voter right at the end of the second Bush term, and you’re asked if you want Bush to pick the next judge or whoever the next Republican is – probably McCain or Romney. I think a lot of Democrats would be riding a strong wave of anti-Bush anger and would absolutely rather take their chances with McCain/Romney or whoever. It’s just natural that they’ve been primed to hate the actual current president much more than the hypothetical future one (even Hillary!).Report

          • Avatar Don Zeko in reply to Aaron David says:

            The problem here is that the way they are reasserting Congressional powers are not tenable rules going forward. If the Congress routinely uses debt ceiling brinksmanship to put pressure on the President, the eventual result will be default. If the Congress starts to routinely blockade nominees by Presidents of an opposing party, the eventual result will be a depleted judiciary, followed by wild spurts of nominations on the few occasions in which we don’t have divided government. It’s unprecedented, it’s not a tenable way to run the country, and it needs to be pushed back upon.Report

            • Avatar Aaron David in reply to Don Zeko says:

              I disagree. Bring an acceptable budget. Bring acceptable nominees. Actually run the gov’t like it is supposed to be run. And this isn’t some crypto constitutinality conservative here. The point is that the people are currently massively divided on what they want. McC has just as much of a mandate as O. In fact, every single congressman, governer etc. has that mandate. There is nothing special about the pres. And that is the point of having checks and balances, of having a three part system.

              The US was seriouly divided when formed as a country, with very different populations and regions. The divisions today are different, but they are still there. We are designed to be slow, as we don’t have a common culture to fall back on.

              We are designed to keep any one group from amasing to much power. In fact, we are designed to nullify a Trump or Obama or Bush, if that is what the people want. Right now, we are set to see what the people want. And like when Obama was elected, we might give someone a lot of power. And we might take it away two years later.Report

              • Avatar Francis in reply to Aaron David says:

                “Bring acceptable nominees”.

                He appears to be trying. But McConnell made things a little tricky when he said that there were 0 acceptable nominees.

                It’s within his powers to do so. And it’s now fair game for Democrats to scream holy hell about Republicans violating the principles of compromise upon this nation was founded, and that he and his fellow Republican Senators are self-serving hypocrites for all that they have talked about “up or down vote”, and to do their very best to oust those Senators based on those attacks.

                I doubt that those attacks will work. I don’t think many Americans care much about these kinds of issues. But if the Republicans are going to dig in their heels on this issue for political advantage, I certainly think it’s appropriate for Democrats to use that intransigence for their own advantage.Report

              • Avatar Aaron David in reply to Francis says:

                Indeed, it is tricky. Obama didn’t bait his hook well enough, shoulda picked someone like Miguel Estrada.Report

              • Avatar Don Zeko in reply to Aaron David says:

                This is the kind of attitude that makes me believe in Poe’s Law. Garland sounds to me like the nominee least likely to move American jurisprudence substantially leftward of those seriously considered, and I’ve encountered precisely zero evidence that he isn’t totally qualified for the job. And yet you still say “pick better nominees” when Obama appoints him.Report

              • Avatar Aaron David in reply to Don Zeko says:

                I say pick better nominees because there is no way to get the right, who control congress, to move toward him. Hence baiting the hook.

                I don’t think Obama can work with this congress, at least not at this point. He keeps making unforced errors, such as missing important funerals. And those little things matter. They matter a lot. They are what gain you political capital, which you need when the congress was for all intents and purposes elected to stop you.Report

              • Avatar Stillwater in reply to Aaron David says:

                Aaron, if you think the GOP’s Obama-obstinacy derives from missed funerals you just haven’t been paying attention. It has nothing to do with any of that stuff.

                Earlier you rejected Cleek’s law. I think you oughta review the history here since my guess is that if you add it all up – Rush, Fox News, Tea Party Braying, etc – you’ll see that the GOP has defined itself politically almost to a view as not-liberal. All they offer as an alternative are completely unrealistic talking points.Report

              • Avatar Aaron David in reply to Stillwater says:


                I reject cleeks law, as I reject the idea of that media leading the right further to the right. The problem, as I see it, as they never wanted to go to the left, they were never actually lead to the left.
                The Foxes and Limbaughs and whatnots arose to meet the needs of them, not the other way around. They don’t exist simply to oppose them, they have things that they want and think are right/wrong. As the left moves to change those things, thats when they oppose them.

                The reason the left lost the middle of the country is they stopped listening to those peoples needs, and started offering unrealistic talking points to them. Those talking points being unrealistic/realistic is really just a matter of where you lie on the political spectrum.

                I think both parties are full of shit, but thats just me.Report

              • Avatar Stillwater in reply to Aaron David says:

                If you think both parties are full of shit, then you won’t distinguish between the type of shit they’re full of. Maybe. The GOP, at the national level, has become full of a particularly toxic type of shit, one which has led to Trump (No. 1!) and Cruz (no 2) leading the primary.

                I’m not the only one who smells it.Report

              • Avatar Aaron David in reply to Stillwater says:

                Sure, you could say that, and you could also say that on a state level that the D’s are full of particularly rotten cabbage. The problem comes down to what your politics are. Does the GOP have an elite/prole problem? Sure. Do the D’s have the same thing? Sure, witness Sanders and BLM.

                Cruz doesn’t bother me one bit, even if I don’t agree with his politics. Much of the critisism comes from the left, who have claimed that every R presidential candidate was evil incarnate. After a while you stop listening. Trump is exactly as bad as HCR in my book, different points and issues, but just as bad.

                I think the shit the D’s are full of is equally toxic, and tends to hit on issues I care deeply about.Report

              • Avatar Stillwater in reply to Aaron David says:

                Cruz doesn’t bother me one bit, even if I don’t agree with his politics.

                ??? Huh? I thought we were talking about politics. … ???

                Much of the critisism comes from the left, who have claimed that every R presidential candidate was evil incarnate.

                Who gives a rat’s ass what other people say. Isn’t the issue what you say?

                Trump is exactly as bad as HCR in my book, different points and issues, but just as bad.

                Trump has no history in politics, so he – by definition, as far as this discussion goes – can’t be “just as bad”.

                Seems to me this is part and parcel of your “government sucks” critique, which is so powerful that you conclude that candidates who’ve never been in government are just as sucky as those who have.Report

              • Avatar Aaron David in reply to Stillwater says:

                Your right HCR is probably worse than Trump.

                “Who gives a rat’s ass what other people say. Isn’t the issue what you say?” Thats what I am saying. I don’t care what other people say about him, just that while I don’t agree with his politics, he doesn’t bother me. Kinda like Biden.Report

              • Avatar Burt Likko in reply to Stillwater says:

                I don’t think that’s true. The Republicans may be full of idiotic shit or spiteful shit, while the Democrats may be full of corrupt shit or unrealistically idealistic shit. Maybe. Hypothetically.

                Different kinds of shit, all disagreeable, but not qualitatively identical.Report

              • Avatar Stillwater in reply to Burt Likko says:

                but not qualitatively identical.

                I’m pretty sure that was my point. {{Now I have to go and check…}}Report

              • Avatar Burt Likko in reply to Stillwater says:

                Well, if I msunderstood you, apologies. Nevertheless, I think I’ve just succinctly (if scatologically) articulated a complete statement of my own politics.Report

              • Avatar Saul Degraw in reply to Aaron David says:

                “I think both parties are full of shit, but thats just me.”

                You say this but you don’t really act like it. Someone who has no problem with Cruz really doesn’t believe that both parties are full of shit.Report

              • Avatar j r in reply to Aaron David says:

                I don’t think Obama can work with this congress, at least not at this point. He keeps making unforced errors, such as missing important funerals. And those little things matter.

                No, they don’t. People tell themselves that they matter as a way of backwards rationalizing the political games.Report

              • Avatar Morat20 in reply to Aaron David says:

                n work with this congress, at least not at this point. He keeps making unforced errors, such as missing important funerals.

                Yes, I’m sure that’s a legitimate and deeply felt criticism and not a cheap shot.

                Actually, I can be sure instead of guessing — did you criticize his 40+ predecessors for all the funerals they missed? (I assume you meant, say, Scalia’s funeral — strangely enough, most past Presidents have also not attended the funerals of dead justices. They’re rarely state funerals, for one. And as weird as this seems, having a President go somewhere in public is…disruptive at best).

                It’s amazing how many criticisms of Obama founder upon recent history and even a cursory examination.

                It’s almost as if they’re not actually criticisms — they’re excuses.Report

              • From SCOTUSBlog, describing the Obamas’ visit to the public viewing at the Supreme Court:

                For two brief, but historic, moments, President Barack Obama and Michelle Obama brought the nation’s tribute to the late Justice Antonin Scalia in the Supreme Court’s Great Hall. The first gesture of respect came from them behind a red rope, in front of a marble bust of the seventh Chief Justice, Morrison R. Waite. who served in the late nineteenth century. The two stood for one minute facing the flag-draped coffin, heads bowed. […] There the Obamas met with one of Scalia’s sons, Matthew, and his wife and their children.

                Odd how the pundits complaining that Obama somehow disrespected Scalia don’t mention that.Report

              • Avatar El Muneco in reply to Francis says:

                And as for acceptable budgets – look at GOP opposition to their own health-care plan. There literally has been no conceivable acceptable budget during Obama’s presidency.Report

              • Avatar j r in reply to Aaron David says:

                I disagree. Bring an acceptable budget. Bring acceptable nominees.

                Do you really believe this? I get that it’s cool to play contrarian. I do it all the time, but it has its limits.

                There is a point at which you make your case through the political process and the people choose which path they want to go down. The electorate chose Obama twice. Congress passed the ACA. Sometimes you just have to be a grownup, take the L, and move on.

                At this point, congressional Republicans are the kid who wants to take his ball and go home, because he can’t win by the normal rules of the game. It’s not a good look.Report

              • Avatar Aaron David in reply to j r says:

                Heres the problem with that; the D’s passes a massivly unpopular law called the ACA. The passed it in a fairly tricky manner, but passed they did. Then came an election and a census. A perfect storm. And as Obama said, “elections have consequences.” This is the consequence of his action.

                Every single senator and congressman has just as much of a mandate as the president. He gets to veto bills, should he just let every single law passed by congress through? Ignore his powers? Conversly, why do we act suprised when other branches of use their powers of veto. Should SCOTUS let all laws through? Should minority party congressmen only vote yes?

                Right now, as I am sure you know, the nation is massively divided. Politically, culturaly, etc. Our gov’t is supposed to stop when this happens, force compromises. That is the whole point of seperation of powers. Does it suck, is it hard. Yes.

                I really means that you need to get out there and convince others that you really do mean to help them, and show them they can trust you. And most importantly, don’t piss off huge voting blocs where you have no power.

                As for taking the ball and going home, the same thing applies to Obama right now, the optics are only the different for where you stand in the ball park.

                As I said to Saul, the D’s ran the table in ’08. Then they moved heaven and earth for the ACA, and now that table has turned. No one forced them to pass the ACA and, as politics tend to go, now they are paying for it.

                There is nothing stoping Obama from going to McC and asking for a list of 5-10 acceptable candidates that would pass muster in the senate right now. They would Advise and Consent, fulfilling their obligations, while Obama could say, yeah or nay to each, forcing the senates hand. I think McC would bite at that hook.Report

              • Avatar North in reply to Aaron David says:

                Out of curiosity Aaron, how does McConnell’s stated intention, at the beginning of Obama’s term, to deny him GOP support for anything he proposed regardless of what it was in hopes of paralyzing him and denying him the bipartisanship he campaigned on fit into this whole theory? Or do elections only count as having consequences when the GOP wins?Report

              • Avatar Aaron David in reply to North says:

                Oh, they have consequences either way. If the voters didn’t like what Mitch was doing they vote him out. If Obama presented to the voters laws that they liked, and didn’t think would come around and bite them in the ass, they would bite, vote in more D’s. But he didn’t, and they didn’t.

                And that is the key. He has to present to the voters what they can accept. The ACA was not it. It gave him no leverage over the GOP, and in fact gave the GOP boo-coo leverage over him.

                Politic is a game of give and take. Of conceding points and gaining points. As I have said, Bill Clinton was a master at it. Making the opposition look venal and himself look virtuous. Obama never had that skill at the presidential level. And it is coming back to haunt the D’s right now. Maybe HCR will win in few months, and start the new season fresh with a pliable senate. But maybe not. And the voters are actually happy with what is going on.Report

              • Avatar North in reply to Aaron David says:

                So basically anything is acceptable to you so long as the voters don’t punish you at the polls for it. So Obama did good in his first term since the voters re-hired him for a second?Report

              • Avatar Aaron David in reply to North says:

                Basically correct. The voters rehired him as the R’s were not what was wanted at that level.. Kinda like going back to a restaurant with bad service but decent food.Report

              • Avatar Tod Kelly in reply to Aaron David says:

                @aaron-david OOC, do you see any argument for governing for the sake of governing? That having all elected officials — on both sides — being paid to perpetually campaign is less than ideal?

                I’m going to go way out onto a near sci-fi hypothetical here, but since we’re talking Big Picture here…

                If both sides dug in their heels over the next 5-15 years, no party got control of both the Senate and the White House, and attrition left us with no SCOTUS, I am assuming that is a line too far? If so, where do we put the line where we decide that government duties are expected to be carried out?

                This isn’t a challenge, just asking as a way of thinking out loud myself.Report

              • Avatar Aaron David in reply to Tod Kelly says:

                “[D]o you see any argument for governing for the sake of governing?”
                Of course, as long as the governing meets my aproval. And that is the problem with things as they are. Neither side will just go “well, thats the law that was passed, gotta enforce it” see DOMA and immigratioin laws for examples.

                If so, where do we put the line where we decide that government duties are expected to be carried out?
                At a federation of states. Which is probably more suitable for the US as we currently stand. But I don’t see the US going much longer at an impasse. Hence Sanders, BLM and Trump. All different facets of the same thing. Angry people who feel left out. I am assuming you agree with some and not others. But that doesn’t matter. All of them feel that.

                As I get older (and I am only a couple years younger than you) I see more and more the beauty of our political system. Its frustrations are mighty, but that is on purpose. When there is something that the country agrees on, a bill will be passed. If there isn’t a consensus, then the veto points stop it. And if it still passes, there are political repercussions. To get passed this, convince the voters.Report

              • Avatar Stillwater in reply to Aaron David says:

                I see more and more the beauty of our political system. Its frustrations are mighty, but that is on purpose. When there is something that the country agrees on, a bill will be passed. If there isn’t a consensus, then the veto points stop it.

                Hmmm. I’m not sure I’d call it “beautiful” but whatever adjective we use, the frustrations are surely intended and on purpose. The whole point was to have serious, grid-locky checks on radical deviations from constitutional principles as well as the status quo.

                But I think you’re ambiguating (heh) between “the country agrees on” and “consensus” in the two uses. The second use refers to a consensus amongst congresscritters; the first refers to the body politic. Which gets back to what you see both as what’s “beautiful” about our political system, but which you more prominently lament (in whatever forms the particular lamentations take), namely, that the same power that permits obstruction preventing anti-democratic non-consensual legislation permits the passage of anti-democratic non-consensual legislation.

                Is that an uncharitable characterization of your views? Sorry if it is. And if so, it’s – admittedly – because I don’t understand precisely how you square your circles. (Shave the corners? Blow out the sides? … 🙂Report

              • Avatar Aaron David in reply to Stillwater says:

                1. Ambiguating is an awesome word.

                2. ‘“the country agrees on” and “consensus”’ I am using to describe the same thing, the will of the people. This can be the direct will (votes for the president) or the will once removed (voiced through representitives). Does that help?

                3. I am not lamenting, mostly describing what I see. Having multiple veto points along with the ability for voters to come back on most laws if they don’t work as planned is the beauty I see.

                4. I see nothing uncharitable here, as you are asking questions of me trying to see what my views are.

                I hope those answer your questions, if not, ask away…Report

              • Avatar Stillwater in reply to Aaron David says:

                Well, they don’t. Over the last several years you’ve lamented – GNASHED! – about how the two parties, but particularly the Democrats, have moved away from you’re conception of good politics and policy in favor of cynicism, but NOW you’re saying that each party just represents the will of the people (by definition!), as if there were no other machinations or ulterior motives or poltical-opportunism in play.

                In short, you seem to be saying Our Democracy works great!

                So, no. I don’t get your new view. I mean, even I – an avowed Democratist! – don’t agree with *that* assessment.Report

              • Avatar Aaron David in reply to Stillwater says:

                ” as if there were no other machinations or ulterior motives or poltical-opportunism in play.”

                If I have given you that opinion, then I am truly sorry. I don’t see that as outside the realm of current politics, nor do I see that as the will of the voters. That is the will of the parties, attempting to put their priorities in front of the people as solutions to problems that might or might not exist. That is sales. It definately interacts with the political process, but it is not exactly the will of the people.

                I would say that the Parties add another layer to the cake, giving many people an easy way out in politics, an easy answer. Do I find them cynical? Yes, that is politics. I don’t have to like it, and dont. No, I don’t find that to be good politics, and in my estimation is what leads to the current impass.Report

              • Avatar Don Zeko in reply to Aaron David says:

                @aaron-david You’re reading the minds of the American electorate with a lot of bravado here, dude.Report

              • Avatar Aaron David in reply to Don Zeko says:

                How else should I read them? We often look at polls to see what the electorate thinks on issues, no? Well, here is the only poll that matters, and this is what it is telling me. I am open to different interpretation, I would need to hear them and then place the conclusion in with what I have seen and what I see.Report

              • Avatar Don Zeko in reply to Aaron David says:

                So on the one hand, you assert that the ACA is and was highly unpopular, that it’s passage cost Democrats the house in 2012, and that had Obama backed off he would perhaps have more seats in the senate and more leeway to get a Supreme Court justice confirmed. On the other, you just wrote that if there is consensus on an issue, Congress will pass a law on it, and if there is not, the various veto points will kick in and they won’t. So was the only poll that mattered the 2008 election, the 2010 election, the 2012 election, the 2014 election, or the final roll call votes that passed the ACA into law?

                If we turn to poll data, we find that the ACA has consistently been underwater in a straight approve/disapprove matrix, but that many of the disapprovers disapprove from the left and that virtually every provision of the law polls extremely well if you ask voters what they think of it in a vacuum. If we turn to whether or not Obama should be able to choose a replacement for Justice Scalia, you get polls that say 55% of voters disapprove of what the R’s are doing. So does that reflect the will of the people, or does the Republican victory in the 2014 midterms?

                The fact is that public opinion is and always has been complex, incoherent, and contingent. yet you are discussing it here as if it’s plain that the President and his party have lost the trust of the middle of the country in such a way that their antagonists are legitimate in opposing them no matter how extreme or intransigent the form of that opposition. The evidence I see merely reflects that the President and his party have lost the trust of you, and that you support intransigent opposition by the Republicans. The two are not the same, and I’d prefer that you not dress up your own interpretations and opinions as some illusory Will of the People.Report

              • Avatar Aaron David in reply to Don Zeko says:

                Well, I see that it is pretty obvious, while you don’t.

                And I would prefer you not to tell me how to interprete what I see.

                I think we are done here.Report

              • Avatar trizzlor in reply to Don Zeko says:

                It took me a while but I get where @aaron-david is coming from here. The job of Mitch McC & co. is to carry out the will of their electorate. That electorate repeatedly sent them to Washington to be the party of “Hell No!” and now they are being that party. If you believe this is a suboptimal strategy your complaint should be with the electorate, not with the elected. It’s like complaining that the executor of an estate is an asshole because you don’t like what’s in the will. The solution is *not* to give the executor leeway to override the will, as this has historically lead to the rich/white folks who are friends with the executor getting their way, and the rest out in the cold. The solution is to convince people not to write shitty wills.Report

              • Avatar Don Zeko in reply to trizzlor says:

                The trouble, then, is that Obama and Congressional Democrats got elected promising to, among other things, enact universal health care and appoint Supreme Court justices who will uphold Roe v. Wade. Both sides reflect sincerely expressed wishes, but one side’s reflected preferences are procedurally radical and incompatible with the peaceful sharing of power in a democratic system.

                P.S. I do think my tone got too personal and combative toward @aaron-david in my previous comment. While I certainly find his position in this debate frustrating in the extreme, I could have done a much better job of expressing it than I did above.Report

              • Avatar aaron David in reply to Don Zeko says:

                Thank you! I wanted to get out before i got heated myself. Sorry to be so abrupt.Report

              • Avatar Burt Likko in reply to aaron David says:

                Thank you both, @don-zeko and @aaron-david , for this most recent exchange. Your ongoing disagreement is noted, and your mutual decision to remain civil as you disagree is a most excellent example of what this site is all about.Report

              • Avatar Autolukos in reply to Aaron David says:

                There is nothing stoping Obama from going to McC and asking for a list of 5-10 acceptable candidates that would pass muster in the senate right now.

                It’s true that Obama could ask, but it’s delusional to think that McConnell would respond with anything but the party line on stalling the nomination until the next President is in office.Report

              • Avatar Damon in reply to Autolukos says:

                Really? You think that he’d blow a change to install “one of their guys” so there could be an election issue? You have an even lower opinion of politicians than I do. I think someone acceptable to the right, and I mean really really acceptable, say a mini scalia, would get the consent. Of course, I don’t think O would nominate that type of person.Report

              • Avatar Autolukos in reply to Damon says:

                There is nothing but downside for McConnell in doing anything that makes an appointment more likely. If Scalia himself rose from the grave and convinced Obama to nominate him for his old seat, the Senate Republicans would refuse to hold hearings while their media allies painted him as a dangerous radical for daring to believe that the Fourth Amendment sometimes means the government loses.Report

              • Avatar Aaron David in reply to Autolukos says:

                Well, I think McC would bite on that hook, but if he didn’t, that would give O leverage with the voters, “I have tried everything to make sure this seat is filled, setting aside my personal political belifes, as I feel it is so important, but this is where we are right now.” Leverage. Playing the game. Politics.Report

              • Avatar Don Zeko in reply to Aaron David says:

                From where I sit, it sure sounds like “tried everything to find common ground with R’s” will always be one Friedman Unit more than whatever Obama has done to reach out.Report

              • Avatar Aaron David in reply to Don Zeko says:

                From where I sit, its one F-unit past Obamas skill set.Report

              • Avatar Morat20 in reply to Autolukos says:

                Given that Obama basically did that — Hatch’s own words are being hung around his neck — with Garland, it appears we have a test case in front of us.

                Cleek’s law says the GOP will fight Garland with everything they had, because he’s suddenly a dangerous liberal socialist because Obama chose him.

                Which…appears to be what has happened. (Even the VC member’s own op-ed just flat out assumes Cleek’s law, and he’s sympathetic to Republicans).

                He can reject Cleek’s law all he wants, but reality seems to be accepting it. I get why it’s hard to swallow — it’s just so remarkably petty, isn’t it? Hard to believe it’s a guiding principle of a major party. Nonetheless, if you take a look at anything political through Cleek’s law — it’s a very accurate guide. Not perfect, but a better prophet than anything else I’ve seen.Report

              • Avatar Mike Schilling in reply to Morat20 says:

                I’f Russia had invaded the US on Obama’s watch, The Rs would be on Putin’s side.Report

              • Avatar Jaybird in reply to Mike Schilling says:

                If you had told the editors of The Nation that exact sentence in the 1930’s, they’d have thrown a party.Report

              • Avatar Mike Schilling in reply to Jaybird says:

                Who would they have thought Putin was?Report

              • Avatar Marchmaine in reply to Mike Schilling says:

                The guy who wrote Amadeus?Report

              • Avatar Jesse Ewiak in reply to Aaron David says:

                “I disagree. Bring an acceptable budget. Bring acceptable nominees. Actually run the gov’t like it is supposed to be run.”

                Here’s the thing. I don’t like the deal Ryan and Obama made at the end of last year. But, I accept it’s the deal that had to be made because the House and Senate are led by the other party. And I’m a near socialist. OTOH, Tea Partiers and people like Cruz basically believe that we should default on the debt unless Obamacare gets repealed, we cut taxes by 50%, and eliminate the Department of Education.

                Same thing w/ the Supreme Court. I didn’t like Alito as an appointment. I wanted my Senator to vote against him. But I accepted that Bush, as a conservative got to nominate a conservative.Report

              • Avatar Saul Degraw in reply to Aaron David says:


                The problem with “acceptable” is that the term is void for vagueness. Acceptable to whom? What are the criteria? Acceptable to the Democratic base? I know lots of Ds who are quite disappointed to angry about the Garland pick because of how centerist he is and they disagree with the notion that Obama is playing 11th dimension chess. Agreeable to the GOP? Senator Hatch previously called Judge Garland an acceptable compromise nominee and is know backtracking like mad. The idea of “acceptable nominee” is useless because the goalposts are always changing.Report

              • Avatar Aaron David in reply to Saul Degraw says:

                Acceptable to those who can approve him. No one else matters. Does his base get upset by this, of course. For them he gets on the bully pulpit and says how awful the R’s are. Get them to get out the vote. Of course, ya gotta have people in the right states to vote for these senators…

                Politics is a hard game, with lots of in-and-outs. Bill Clinton was a master at it. I know, I know, the left hates the triangulation. Tough shit. That is the game. That is how it works.

                Unless you run the table. The D’s did this in ’08, and then screwed the pooch with the ACA. And when the R’s probably should have spent some time in the wilderness, they got a fresh seat at the table with one of the angriest electorates in a long time. As Obama said, ” elections have consequences.”Report

              • Avatar Jesse Ewiak in reply to Aaron David says:

                Talking about Bill Clinton’s triangulation is a good plan if you wanna pull a BSDI to make yourself look above it all, but considering a Republican Congress happily put Breyer and Ginsburg on the Court, it doesn’t make the current GOP look any better.

                Because the GOP in the 90’s realized elections do have consequences and those consequences include President’s get to nominate who they want on the Court if a vacancy appears and if that nominee is qualified, that person, even if they’re an uberliberal like RBG, gets approved.Report

              • Avatar Patrick in reply to Aaron David says:

                Bring an acceptable budget.

                It’s not the President’s job to bring an acceptable budget.

                It’s the President’s job to take the information he gets from the Executive Branch and present it to Congress. “You folks legislated that my branch do this, that, and the other, and this is how much the folks in my branch say it will cost to execute those duties within the boundaries of acceptable law, according to my priorities.”

                It is then on Congress to either accept that budget outright (which they never do) or haggle over priorities (which they always do, and which is well within their right and proper role, after all, and something that they can pretty much declare by fiat back to the President if they disagree with his priorities, just by specific funding mandates or reductions).

                But that of course requires them to actually come to an internal consensus, which requires them to negotiate with each other, something they’ve been unwilling to do for eight years, probably because everyone is terrified of the budget reconciliation process, so they’ve been avoiding it by just not talking about budgets at all, which is hilarious.

                Similarly, regarding SCOTUS:

                One can make an argument that they actually just have the duty to advise (we don’t like that candidate) but they’re still required to accept, because that’s what the text actually says:

                “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

                Notice the lack of the two thirds requirement and concurrence in that second clause. Tricky textual problem, that.

                Even taking that out, I don’t see how anyone who doesn’t want me to chuckle in their face can make the argument that refusing to do anything qualifies as “advice” regarding an appointment.

                That’s not advising anything. Going on record with “we find this candidate acceptable/not acceptable/an affront to the American people”, whatever, that’s advice.

                “We think the President lacks clear authority to begin this process” is just flat out ridiculous.Report

        • Avatar trizzlor in reply to Burt Likko says:

          >>And there are precedents for both voting on, and refusing to vote on, nominees offered by Presidents in the closing days of their terms, with a variety of permutations of partisan control of either end of Pennsylvania Avenue.

          Is there actually precedent for saying we will not consider *any* nominee? It seems to me like there’s a big conceptual difference between saying “We don’t like nominee X because of his characteristics Y,Z,W and we will do everything in our power to block him” and saying “We don’t like you, and we will do everything in our power to block any of your nominees”.Report

      • Avatar Troublesome Frog in reply to Aaron David says:

        What we’re seeing is that slowly the behavioral norms of operating government are going away and we’re being stripped down to the bare bones of written rules. Every election cycle, we use all of the norm-eroding rule-parsing weapons of the previous cycle plus one or two more.

        I don’t think any society can function based on only the rules as written. Social norms are a huge part of what keeps us all from going completely off the rails. I’m starting to think that we’re not too far from the new Supreme Court vacancy rule being, “No vacancies filled unless one party has the White House and the Senate.”Report

        • Avatar Aaron David in reply to Troublesome Frog says:

          Or, the old norms and such didn’t help everyone, and now they are looking for what was promised them. I keep saying this, but the truth is that society is intensly divided right now. And until there is a paradigm change, the writen rules are all we got. Everything else is a product of rich white dudes, and they are loosing power. Sucks its on the D’s watch, but R’s aren’t doing so well either, what with Trump and all.

          The real question is, with Sanders, BLM and Trump, is this the paradigm change?Report

        • I would argue, and have argued on these pages, that American conservatism in its best and most noble expression is about preserving and using our cultural norms to buttress our social and governmental institutions for the common benefit.

          Deviations from those norms ought to be viewed skeptically, as should uses of power which are novel and greater than previously experienced. Not that such things are to be forbidden, but carefully and cautiously considered before being implemented.

          Consequently, the moral teachings of our social institutions, like churches and nuclear families, ought to be given great deference. Lifestyle choices that deviate from the norms taught by these institutions (e.g., same-sex romantic relationships, excessive consumption of intoxicating substances) are appropriately discouraged although not necessarily legally forbidden. Rather, people should be encouraged to work within and through institutions (e.g., completing specified courses of academic work while young, voluntary enlistment in the armed forces) and to adhere to norms (e.g., tax incentives to incentivize creating new nuclear families by marriage and child-rearing, or disincentives to excessive consumption of public benefits such as limitations of social welfare benefits, or intentional choices made within school curricula to inculcate young people with particular ideas like patriotism and good sportsmanship).

          Such, I posit, is the aspirational goal of American conservatism in its nexus to government. Comity between partisans fits nicely into this vision of the world as a cultural norm: it enables us to live together peacefully and channels our disagreements into a political process that institutionally, creates opportunities and incentives for discourse and compromise. We don’t agree, but we can talk about it rather than fight, and maybe we can work out a deal. That, after all, is what Mr. Madison told us we should do!

          If you a) buy into that definition of what conservatism at least aspires to be, and b) claim Republicans intentionally disregard and erode the norm of partisan comity, then Republicans are betraying conservatism itself. This claim is refuted by disputing either point a) or point b).

          The reaction of McConnell & Co. to the Garland nomination is at least evidence that b) is underway to a palpable degree. As I argued yesterday, #NoHearingsNoVotes is going to have a tangible effect on the ability of a critical set of governmental institutions, the courts, which are where most people have most direct contact with the government, to function.

          So if I were to identify as conservative (which I do not) and I therefore found this comment uncomfortable, I might attack the thesis in part a), what conservatism is really all about — at the risk of inadvertently proving that a) is wrong by proving that Cleek’s Law is right.

          What I’m soliciting here is either a concession that #NoHearingsNoVotes is unprincipled partisan brawling, or a recital of the epistemology of contemporary conservatism that holds some philosophical coherence.Report

  8. Avatar Stillwater says:

    Should we be surprised that they won’t do it?

    I know what you’re getting at, but I really do think we should be surprised, and not because long-standing norms and comity (whatever) are being flouted. The reason I think we should be surprised is what the degree of leverage the GOP thinks they have on this issue, and what USING that leverage, says about the political state-of-the-GOP. Regarding the first, the GOP – as the party which controls the Senate – clearly has constitutional right to obstruct SC nominations for the entirety of a Presidential term, but politically the party (or a few Elders) seem to think that conservative electoral fortunes will be increased by engaging in a patently obvious electorally motivated power play. Now, whether they’re right or wrong in that belief (personally I think it will come back to bite em in the ass … or it would have if Trump hadn’t already gnawed their ass completely off) the mere fact that they’re willing to destroy the effective functioning of government (and the debt-ceiling hostage crises are another example of this) in order to save it is an act of (what I’ll call) extra-political activism effectively undermining their own claims to being the party of competent governance.

    Which is so incoherent as to be VERY surprising.Report

  9. Avatar Jaybird says:

    I’m just glad Obama picked a former prosecutor who graduated from Harvard and who is now a judge on the DC circuit.Report

    • “It’d be hard to be more liberal than Merrick Garland,” McConnell told NBC News.

      So now he’s not even bothering to hide the fact that he’s lying.Report

      • Avatar trizzlor in reply to Mike Schilling says:

        I think there’s a reasonable argument that the relative leftism of Garland doesn’t matter much because the liberal justices tend to vote as a bloc. Sotomayor is supposedly to the left of RBG, but how often do they split? But what cannot be argued is that it’s hard to be *younger* than Garland, which was a clear compromise offered by Obama. Even in the universe where every Dem nominee is the same ideologically, there’s a clear difference between 63yo Garland and 47yo Liu or 49yo Srinivasan.Report

        • Avatar Don Zeko in reply to trizzlor says:

          For some issues, that’s certainly true. But while the court may be moving more towards bloc voting, there’s still a lot of complexity out there and a number of issues that don’t see simple 5-4 splits. Take, for example, Scalia’s jurisprudence on the Confrontation Clause.Report