Daily Beast: Merrick Garland’s Lonely Road to Purgatory

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Mike Schilling

Mike has been a software engineer far longer than he would like to admit. He has strong opinions on baseball, software, science fiction, comedy, contract bridge, and European history, any of which he's willing to share with almost no prompting whatsoever.

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  1. Avatar Damon
    Ignored
    says:

    “the McConnell Rule—is that no (Democratic) president is able to fill a vacancy on the Supreme Court in their final year in office.”

    Yeah, and would I be surprised the Democrats pulled something similar if the positions were reversed? Nope

    Garland should have known what he was getting into. He’s a big boy. Besides, Hillary can always nominate him again.

    In the scheme of the dysfunction that is DC this is a minor issue.Report

    • Avatar Saul Degraw in reply to Damon
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      says:

      @damon

      Yeah, no. This is not a BSDI. Yes Democrats do reject Supreme Court nominees for ideological reasons but please give me an example where they refused to hold a hearing or debate on a Republican nominee to the Supreme Court. Kennedy’s famous (or infamous) speech on Robert Bork’s America occurred in debate on the Senate floor.

      Harriet Miers was largely destroyed by the right-wing media who found her insufficiently conservative.Report

      • Avatar Morat20 in reply to Saul Degraw
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        says:

        People forget — Bork got a full vote. There was no 60-vote threshold, there was no holding him up in committee and never bringing it to the floor.

        He got a simple, majority wins, full floor vote. And he lost.Report

        • Avatar Burt Likko in reply to Morat20
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          says:

          In one sense there is equivalence: the intellectually- and experientially-qualified Bork was nominated but did not get on the Court because of partisan political activity. He was too far away from the majority of the Senate ideologically, so they did something political to keep him off the Court.

          If you don’t particularly distinguish between “not letting them get a vote at all” and “voting them down,” and all that matters to you is result with the process of getting that result irrelevant or at least uninteresting, then there may well be equivalence.

          If the process matters, then this is an important point to make: Bork got hearings, Bork got a vote. He got to explain himself and make a case for his elevation to the High Court. We may dispute whether or not the hearings and the vote were fair. Garland, however, doesn’t get that chance. The process that’s being used in his case is different than the process that was used for Bork, when partisan positions were reversed.

          So — does only the result matter? Or is the way we get that result also important?Report

          • Avatar Mike Schilling in reply to Burt Likko
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            says:

            Bork was nominated but did not get on the Court because of partisan political activity.

            Bork’s wasn’t a party-line vote; six liberal Republicans voted against him, which two conservative Democrats voted for him. Garland’s not getting even a hearing is entirely a decision of the GOP leadership.

            Nor was this a declaration that no nominee would be considered, regardless of merit. The Senate confirmed Anthony Kennedy 97-0.Report

          • Avatar Stillwater in reply to Burt Likko
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            says:

            If the process matters…

            It has become necessary for conservatives to destroy our democracy in order to save it.Report

            • Avatar InMD in reply to Stillwater
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              says:

              This is what I find generally disturbing. A down vote is fine. It would be a rejection of a candidate for a very important job. The attack on the system on the other hand…Report

              • Avatar Stillwater in reply to InMD
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                says:

                A down vote for Garland would be hard to justify given that a bunch of sitting (and past) GOP senators have expressed admiration for him as a judge. They’d have to actually express their newfound disapproval in a public forum via actual arguments, which may be difficult to do given Garland’s record on the bench. So difficult, in fact, that blowing up the whole process is apparently the only politically palatable option available…

                {{OK, maybe I’m overstating things just a bit…}}Report

              • Avatar Michael Cain in reply to Stillwater
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                says:

                Given that they don’t have to advance an argument that convinces you or me (or all the other policy- and politics-oriented wonks around here), but only enough marginal voters back in their home state, it seems to me that “Judge Garland is a fine person and jurist, and an excellent administrator, at the level of the DC Circuit Court. He’s not properly suited for a role on the Supreme Court. The circuit courts are full of people who are excellent at that level, but not suitable for the Supreme Court” would work.Report

              • Avatar Don Zeko in reply to Michael Cain
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                says:

                I suspect the biggest problem with holding hearings isn’t that they’d have to come up with an execuse for opposing Garland, but that it would get media coverage and remind low-information voters that this is even happening.Report

              • Avatar InMD in reply to Michael Cain
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                says:

                I think this is about right. There’s no requirement that any Senator explain how they vote, much less that they explain it intelligently. They vote in hypocritical ways all the time. I don’t think it’d lose anyone an electionReport

              • Avatar Oscar Gordon in reply to InMD
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                says:

                Agreed, I find this irksome as well. One should play by the rules one agrees to, or lobby to have the rules changed, but don’t just refuse to play.Report

          • Avatar Saul Degraw in reply to Burt Likko
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            says:

            @burt-likko

            Do we have enough evidence to argue that the Republicans have become result oriented and procedure be damned according to them?Report

            • Avatar Tod Kelly in reply to Saul Degraw
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              says:

              I think it’s somewhat different. I would argue that Republicans are very process oriented. They’re just being pushed to follow a different set of processes right now.

              I think a somewhat more accurate way to frame the argument @burt-likko was making is that both with Garland and a slew of other strategies, the GOP is replacing traditional, institutional procedures in place of procedures that temporarily favor them.Report

              • Avatar Don Zeko in reply to Tod Kelly
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                says:

                I think calling the ad hoc justifications you hear on fox “procedures” is being quite charitable. There is one and only one principle behind it: massive resistance to Obama at all costs.Report

              • Avatar Stillwater in reply to Don Zeko
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                says:

                I wouldn’t call the “procedures” either. “Constitutionally permissible tactics” is closer. Except when the tactics aren’t even constitutionally permissible. See, for example, the implementation of anti-“vote-fraud” laws and practices.Report

              • Avatar J_A in reply to Tod Kelly
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                says:

                +1

                “the GOP is replacing traditional, institutional procedures in place of procedures that temporarily favor them.”

                We’ve talked about this a lot. The GOP has embarked in a strategy in which every short term victory increases the risk for them in the long term. They all know it, but no one is willing to correct the short term route, because whoever does it, won’t survive until the long term.

                It’s sort of a collective Prisoner’s Dilemma: Please God, let someone else defect, be crushed doing it, and save me from my actionsReport

              • Avatar Stillwater in reply to J_A
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                says:

                It’s sort of a collective Prisoner’s Dilemma

                It’s very much that, from two povs (one piggy-backing on the other): a) individual political self-interest (ie., getting re-elected) requires GOPers to not defect from b) the Party’s ideological commitment to not defect from pure obstructionism against all things (capital D) Democratic.

                How that plays out in the long run remains to be seen, of course, but the rise of Trump and Trumpism, which is – in my mind – the political embodiment of institutional rejectionism, suggests that the GOP’s future ain’t all that rosey.Report

          • Avatar J_A in reply to Burt Likko
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            says:

            As others said early, the process matters

            Bork’s process was completed. He was voted down, Another candidate was submitted, and he was approved with no votes against (nominated by Reagan less than 12 months before the election, btw).

            Mitch McConnel has highjacked the process. He has added an extra constitutional hurdle that didn’t exist before: “no candidate, no matter who, will ever be considered in a presidential election year, because I, Mitch McConnel, own the process, and will do whatever I want”

            Once the process has been hijacked like this, what’s to stop him from stopping the process again come January. Nothing. (*)

            Perhaps the new rule is “Supreme Court Justices can only be confirmed when the Senate and the President are from the same party”

            (*) A six pack of IPA says that there will be no confirmation in 2017 either, if Hillary wins and the GOP still controls the SemateReport

            • Avatar Kazzy in reply to J_A
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              says:

              Why does McConnell hold so much sway? Maybe we need to further evaluate the process if one man can wield such power.Report

              • Avatar Don Zeko in reply to Kazzy
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                says:

                He appears to represent the preferences of his caucus and his party in this respect. If he didn’t, I don’t think this strategy would be plausible.Report

              • Avatar nevermoor in reply to Don Zeko
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                says:

                Well… at least 40 of ’em anyway.Report

              • Avatar Saul Degraw in reply to Don Zeko
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                says:

                And McConnell is from Kentucky which a very red state now and very safe for Republicans.

                FWIW, if the GOP Senate Majority Leader were from a state like Ohio, Colorado, Wisconsin, Illinois, Michigan, Pennsylvania, I doubt he or she could get away with McConnell’s more brazen attitudes and statements. Those states are still likely to elect Democratic politicians and residents are likely to be shocked and punish a politician that does as McConnell does.Report

              • Avatar J_A in reply to Saul Degraw
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                says:

                Which means we won’t see a Leader, of any party, from a purple state.

                This way, a purple state senator can always say “I’m in favor/opposed to X, but the leadership won’t bring it to a vote”Report

              • Avatar Saul Degraw in reply to J_A
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                says:

                Maybe. The Democratic Party seems more willing to appoint leaders from purple states like Harry Reid. OTOH, the next Democratic majority leader will probably be Schumer.Report

              • Avatar J_A in reply to Saul Degraw
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                says:

                Which shows that Dems care more about the proc se than the results. Schummer is extremely unpopular nationwide and will diminish the stature of the caucus in the public opinion, but “its his turn, or something, something” and the idea of choosing someone more pupular that can go on TV and argue for the DemocrTic position doesn’t seem to occur to themReport

              • Avatar Saul Degraw in reply to J_A
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                says:

                Is Schummer unpopular nationwide? With whom?

                I know Schummer is unpopular with the liberal section of the Democratic Party because of his friendliness to Wall Street* but he is overall a reliable if centerist Democrat. I think a lot of liberals (especially white liberals with advanced degrees) have a hard time grappling with the fact that they are only a significant minority of the Democratic Party and not a majority. Despite GOP claims, IIRC only 25 percent or so the Democratic Party identifies as liberal.

                The Democratic Party is much more broad church than the GOP in many ways.

                Now sometimes the more progressive candidate does win like De Blasio, Warren, and probably Harris in CA (Sanchez is seemingly getting ignored). But New York is not as crazy liberal as Republicans imagine it to be. A lot of my friends in New York gnash their teeth in impotent rage that Cuomo and Schummer win easily.

                *The truth is many states have unique little niches that Senators are friendly to in ways that might not be ideologically consistent with the Party. Elizabeth Warren can go after the financial and credit industries because she is from Massachusetts where those industries are not major players.Report

              • Avatar J_A in reply to Saul Degraw
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                says:

                I don’t dispute he is popular in New York, and he has a lot of seniority which allows him to do a lot of things for those that support and fund his campaign.

                At the same time, the reality is that our politics have been federalized. The general population is able to identify very few names, and most don’t know the names of their senators (I have to make a mental effort when asked about the senior senator of my state, the junior one being Ted Cruz) and even less, who their representative is.

                The caucus leaders are one of the very few that have national prominence, and their “national popularity” reflects on the national conversation. That’s why Republicans will mention Pelosi every chance they have, because even for Dems she is too far from the left.

                Boehner himself was unpopular. Ryan, for whatever reason, has, and had, high favorability, and has thus been pushed to be the face of the party. Schemer might be very popular in New York, but his favorables aren’t that great anywhere else. He will now join Pelosi in defining, for the public, the Democratic Party.

                I’d rather my party be represented by someone else. I understand that being representative of the party before the country, like the Queen represents the UK, is not the job description of caucus leaders. But they do, so we should take that into consideration when selecting them.Report

              • Avatar Aaron David in reply to J_A
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                says:

                I agree with every bit of this @j_a

                This is the reality of current politics here in the states.Report

              • Avatar Michael Cain in reply to Saul Degraw
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                says:

                Wall Street is not a little-known niche. In much of the country, “Wall Street” is regarded as a bunch of thieves who nearly crashed the national economy, needed a trillion-dollar bail-out, and get lavish tax breaks. How much is HRC’s apparent chumminess with Wall Street hurting her nationally?

                Mountaintop removal coal mining in WV is an abstract topic to most of the country — the vast majority of people will never see the consequences. Wall Street financial shenanigans have effects almost everywhere.Report

              • Avatar LeeEsq in reply to Michael Cain
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                says:

                Anti-Wall Street diatribes have also been part of the political discourse in the United States since the 19th century. Americans got those diatribes in left and right versions for a long time. The epic battles against the Bank of the United States, bimetallism or gold standard, whatever was said during the Great Depression, the outsourcing debates during the 1980s, Occupy Wall Street, and the Tea Party stuff. Its all there. Usually with a lot of implicit or explicit anti-Semitism.Report

              • Avatar Don Zeko in reply to LeeEsq
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                says:

                Sure, but it definitely spiked in 2008, and for good reason.Report

              • Avatar LeeEsq in reply to Saul Degraw
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                says:

                Many liberals in general and white liberals with advanced degrees in particular seems to assume that all non-white voters are automatically on board with them on every policy issue. This seems to be the case in the more ethnically diverse European countries to.Report

              • Avatar Michael Cain in reply to Kazzy
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                says:

                Article II, Section 5: “Each House may determine the Rules of its Proceedings…”

                McConnell holds so much sway because the Senators chose to give the majority leader that much sway. Based on exposure to the inner workings of a state legislature, I would suggest that most Senators gave the majority leader that much sway because there’s an enormous amount of scut work involved in leadership positions, and they were eager to dump it on somebody else.Report

              • Avatar Mike Schilling in reply to Michael Cain
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                says:

                It beats thinking for yourself.Report

              • Avatar Kazzy in reply to Michael Cain
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                says:

                I guess what I’m asking is is this really McConnell doing this unilaterally? If the 99 other Senators wanted to proceed on a nominee, could he still hold it up? Or is he just the tip of the spear?Report

              • Avatar Don Zeko in reply to Kazzy
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                says:

                The majority leader controls what comes to the floor, more or less. If the rest of the caucus (or the Democrats and enough R’s to get to 51) want a new majority leader, they can get one at any time. So no, it’s not unilateral. Its a strategy that the entire Republican caucus has agreed to, although I’m sure some of them have private misgivings about it.Report

              • Avatar Michael Cain in reply to Don Zeko
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                says:

                Majority and minority leaders are chosen within the party caucuses (winner of the larger caucus is the majority leader). McConnell currently needs 28 votes, all in his caucus, to hold the position. The Dems simply don’t get a voice in the matter absent some set of Republican Senators changing party affiliation.

                The Senate rules are peculiar. A sufficient majority (65, I think) can force a rule change at the beginning of a Congress. And there’s the so-called “nuclear option” where a majority can create a precedent for ignoring a rule under some circumstances. There’s a lot of institutional resistance to voting to ignore a rule.Report

              • Avatar Saul Degraw in reply to Kazzy
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                says:

                He could punish Republican senators by taking away their committee assignments and placing them on committees that are not valuable to their constituents.Report

            • Avatar trizzlor in reply to J_A
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              says:

              >>As others said early, the process matters

              And just to expand on this some more. The *reason* this process matters is because it holds the decision-makers accountable to the public. If you have hearings you are forced to state your position on the candidate and defend it publicly. If you have a vote you are forced to go on record with that position. Your constituents can challenge your justifications or your vote. They can motivate you to reformulate your arguments, change your position, or work harder to convince them that what you’re doing is in their interest. This is, fundamentally, how a representative democracy works. Letting this process deteriorate allows Congress to be less publicly accountable.Report

      • Avatar LeeEsq in reply to Saul Degraw
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        says:

        Harriet Miers was destroyed because even Republicans recognized that she was not qualified to be a justice of the Supreme Court even though her opinions were conservative enough.Report

        • Avatar J_A in reply to LeeEsq
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          says:

          I think the real issue is that they discovered that she was far less conservative than what they required, particularly on social issues, and didn’t trust her to be a reliable vote, likely to go the Souter (and Kennedy) route (she had been a Democrat until 1988)

          The lack of credentials was just a fig leave. Had she been another Alito, burning with righteous purity, they would have lauded her lack of credentials as a breath of fresh air that would clean the stuffed, elitist, Supreme Court chambers (which I agree are stuffy and elitist, btw)Report

    • Avatar Don Zeko in reply to Damon
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      says:

      Why not just cut to the chase and say that you don’t want the court to move left and will use any means necessary to prevent it? Denying the president the opportunity to confirm any nominee at all, or even hearings for any nominee, is completely unprecedented and a naked power grab.

      Oh, and here’s a follow-up: if the Republicans hold the Senate and Clinton wins the election, do they have any obligation to cease their blockade, or will we just have a hamstrung supreme Court until 2019 at the earliest?Report

      • Avatar Hoosegow Flask in reply to Don Zeko
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        says:

        I don’t think it’s impossible they will wait to see if they can get a 4-3 court leaning in their favor before filling vacancies.Report

        • Avatar Don Zeko in reply to Hoosegow Flask
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          says:

          Me neither. So I’d like to hear one of the apologists for the Garland blockade defend that as a reasonable selection procedure.Report

        • Avatar Saul Degraw in reply to Hoosegow Flask
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          says:

          @hoosegow-flask

          I concur. I can see Republicans waiting until Ginsburg or Breyer steps down or dies and then saying “seven is fine.”

          The interesting issue is what they would do if Thomas, Alito, Roberts, or Kennedy leaves the court before any of the liberals and HRC or Obama is President.Report

      • Avatar Damon in reply to Don Zeko
        Ignored
        says:

        “Why not just cut to the chase and say that you don’t want the court to move left and will use any means necessary to prevent it”

        Because I’m not responsible for what you think. My opinion of the SC alignment has zero to do with my opinion of politicians, left or right. As I stated to Saul, I’ve SEEN dems hamstring a governor’s legislation for their own party advantage and disadvantage him come re-election time. Why would I expect anything better from national representatives? I don’t.Report

        • Avatar Don Zeko in reply to Damon
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          says:

          Because you could look at the behavior of national Dem politicians instead of a state party. If you did, you’d see that Roberts and Alto got Democrats to vote for them, that the Dems didn’t eliminate the filibuster when they had the majority despite Republican abuse of it, and that Anthony Kennedy got 97 votes. For better or for worse, national Democrats aren’t saints, but they are less willing by far than Republicans to play procedural hardball. And again, what the R’s are doing to Obama on judicial and executive branch appointments is totally unprecedented.Report

          • Avatar Damon in reply to Don Zeko
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            says:

            Sure, maybe the national party is slightly less terrible than my state.

            National Republicans: 9.0 on the badness scale
            Local Democrats: 9.5 on the badness scale
            National Democrats: 8.6 on the badness scare.

            Err….wow..still not much difference.Report

            • Avatar trizzlor in reply to Damon
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              says:

              And let’s get those numbers all the way to 10 by playing BSDI whenever they increase!Report

              • Avatar Don Zeko in reply to trizzlor
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                says:

                This is another fun facet of the Garland blockade. If future presidents can only nominate supreme Court justices on a party line vote because simply being nominated by a President of the other party males a nominee flatly unacceptable, then why should a potus ever nominate a moderate Supreme Court justice? Procedural radicalism leads to substantive radicalism leads to more apocalyptic thinking and procedural radicalism.

                I used to use a full scotus blockade as a slippery slope argument about the procedural radicalism behind the current filibuster. Now that it’s upon us, I’m not sure what the next step is. Will President Cruz expand the supreme Court to 17 justices in 2022? If he did, he’d have the support of the GOP in Congress, that’s for sure.Report

      • Avatar Patrick in reply to Don Zeko
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        says:

        Oh, and here’s a follow-up: if the Republicans hold the Senate and Clinton wins the election, do they have any obligation to cease their blockade, or will we just have a hamstrung supreme Court until 2019 at the earliest?

        On the other hand, here’s my play if I’m a Democrat on the Senate judiciary committee and Trump wins. Day one, as soon as I get a mic:

        “I will filibuster every nominee until Garland, who was legitimately put forth as a candidate under the previous administration and was stonewalled illegitimately by this body, gets an up-or-down vote in the Senate. I recognize that it is likely that the sitting members of the Senate will not confirm an eminently qualified candidate that some of them supported vocally in the past.

        Go ahead, pass him along and vote him down. I’m okay with that.

        You’re not getting to the front of the line until you clear the queue. And the queue starts right behind Garland.”Report

    • Avatar Pillsy in reply to Damon
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      says:

      Appeals to alternate timelines are not convincing; nor is the suggestion that Senate Democrats and Republicans are equally aggressive when it comes to using procedure to get their way.

      History suggests that the Democrats would not do everything in their power to prevent a Republican President from elevating a moderately conservative (or even very conservative) nominee to the Court.Report

      • Avatar Damon in reply to Pillsy
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        says:

        My statement was not based upon history, nor was it based upon extensive scientific research. I was stating my opinion. Whether that opinion is correct is a matter of opinion and debate, but given my low opinion of politicians, it’s perfectly reasonable.Report

        • Avatar Pillsy in reply to Damon
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          says:

          Even rooting your argument in a low opinion of politicians is not a very persuasive argument. The issue isn’t that Democrats in the Senate aren’t hypocrites about procedural matters–they are, and they really wouldn’t be doing their jobs if they weren’t [1].

          The issue is that the Democratic coalition is structured differently, and this creates different incentives for individual Senators. One way in which the coalitions differ is that the composition of the Supreme Court is a major concern of the GOP’s activist base, while the Democrats are much less interested in it. Another way in which they differ is that the Republican base is much more likely to believe that the US and the world is teetering on the edge of an apocalyptic crisis [2], justifying (at the least) doing away with informal norms that constrained the power of Republicans in Congress. Finally, the GOP in general is much less concerned about the government failing to function properly on the grounds that Republicans tend to believe that the government isn’t functioning properly and can’t function properly, and Congress doing its job as it was traditionally understood would do nothing to change that.

          [1] I’d argue that one reason that Obama has gotten away with so much envelope-pushing on military and national security matters is that the Republicans haven’t conveniently abandoned their Bush-era principles about executive authority in those areas.

          [2] Often even literally!Report

          • Avatar Damon in reply to Pillsy
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            says:

            “Even rooting your argument in a low opinion of politicians is not a very persuasive argument”

            You seem to be under the impression I am trying to convince someone/anyone of the correctness of my postilion/opinion. I’m not. I stated my opinion. Others have, and will, disagree. No surprises there. Now back to our regular programming.Report

            • Avatar Stillwater in reply to Damon
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              says:

              I think the issue isn’t so much that you have opinions, but rather that when challenged on them you resort to assertion rather than argument. And when challenged that you’re not offering an argument to justify your views, you respond by saying their just opinions.

              And round and round we go.Report

              • Avatar Damon in reply to Stillwater
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                says:

                I’ve already stated the basis of my opinion.

                Similar behavior by State Dems
                Observable crappy behavior of national Dems (this is new to this post)
                Low opinion of all politicians
                Conclusion: The national Dems would do something similar if the roles were reversed. Feel free to rebut the logic, argue I’m wrong, etc., but given the behavior I’ve seen from both sides of the aisle since the mid 80s, I think I’m justified in expecting petty crappy behavior from everyone.Report

              • Avatar Stillwater in reply to Damon
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                says:

                Feel free to rebut the logic, argue I’m wrong,

                I think there’s a difference between me rebutting the logic, and you accepting it as a rebuttment. There are a lot of dimensions in play when it comes to {inhale} policy, government, rights, politics, democracy, economics, self-interest, ideologies, values, morals, norms and the rights of dogs to not be shot by swarming SWAT teams. So I tend to think simplistic views are going to necessarily be incorrect.

                Even if the judgment is “a low opinion of all politicians”.

                I mean, I gotta be honest: given the complexity of things I don’t even know what a statement like that means except the role it plays in signalling.Report

    • Avatar notme in reply to Damon
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      says:

      Don’t you mean the Biden Rule?Report

      • Avatar Patrick in reply to notme
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        says:

        (sigh)

        The Biden Rule is not a thing, dude. Biden made a speech about how it was troublesome and gave the appearance that the Reagan Administration was packing the court system, and then he went along and let the candidate pass.

        If there *was* a Biden Rule… then that’s the Biden Rule, and the current sitting GOP broke it already.Report

  2. Avatar Damon
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    says:

    “Yeah, no. This is not a BSDI”

    Correct, but it is an example of “BSWDI” Both Sides Would Do It. You may disagree, but if the roles were reversed, I’d fully expect it to be done. The republicans just breached that barrier first.Report

    • Avatar Saul Degraw in reply to Damon
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      says:

      Also no. But keep trying to maintain that sweet right-wing hypocritical holy ground.Report

      • Avatar Damon in reply to Saul Degraw
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        says:

        First I’m some Libertarian Utopian-ist living in a fantasy world of no gov’t and now I’m a right wing fanatic. You really should make up your mind about me or do you just change how you designate me to get in one liners?

        I’ve seen the Dems in my state pull crap like this, specifically regarding legislation, when the state had a massive deficit. It was more important that the opposition governor not get any bill through than it was to fix the budget. Curiously, when a dem was elected, THAT SAME legislation sailed through the legislature. I’ve seen the Dems in Congress pull crap like this. I have a low opinion of every single politician (with 1 or 2 exceptions) that has ever kissed a baby. Those few that I don’t have a low opinion of, I have an even lower opinion of.

        You may disagree that your favorite party would never DARE to something so disgraceful. I respectfully disagree.Report

  3. Avatar Don Zeko
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    says:

    What evidence is there that this is the case? The fact that Bork was voted down and you’re still sore about it? Republicans have been vastly more willing to push the limits in the Senate than the Dems for over a decade now.Report

  4. Avatar Saul Degraw
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    says:

    I will give this to McConnell. He is the very definition of chutzpah.

    Recent evidence includes is lecture on letting Americans sue Saudi Arabia after his Senate overrode the President’s veto on the issue.

    The man is absolutely shameless.Report

  5. Avatar LeeEsq
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    says:

    The broader issue is the increase in constitutional hardball in American democracy. What the Republicans are doing to Mark Garland is technically allowed by the Constitution. The Constitution says that the Senate must give its advice and consent to Presidential appointments. There is nothing in a Constitution that says that a hearing or vote are necessary though. The Republican Party has been engaging in more and more of this behavior out of a combination that what they believe in is right and pure political cynicism.Report

  6. Avatar Aaron David
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    says:

    This is McConnells razor.

    If they keep the senate it was worth it. It’s a high stakes gamble, no more, no less. Whether or not we are diminishing “procedure” or not is a BS argument made strictly from politics. If there isn’t a law against it, then they can do it. Otherwise, take them to court. Right now the Senate is in contest, and if the are doing some BS like “cleek’s law” well, then they should suffer for it politically. That is if the electorate doesn’t like the solution. If the polity, say, likes what is going on, all the bitching in the world is not going to move the needle. Especially when it comes from partizans. The D’s have the bully pulpit right now, so the can start trying to move the needle.Report

    • Avatar Don Zeko in reply to Aaron David
      Ignored
      says:

      What happens to the court when Dems follow suit, @aaron-david?Report

      • Avatar Kolohe in reply to Don Zeko
        Ignored
        says:

        That’s ridiculous, Democrats would never play brinksmanship games with the Supreme Court.Report

      • Avatar Aaron David in reply to Don Zeko
        Ignored
        says:

        It goes down to 7. If the public (those who all this is in service of) care all that much, they will break the log jam, one way or the other. And right now it is in deciding who takes the Senate and the who will be the president and get to work with them. If the president had put up someone like Estrada, McC would have more likely than not picked him. Or Obama could attempt to pack the court like FDR and see if that sticks.

        The point of all of this is to not allow one part of gov’t to have too much power. And, in my eyes, is working perfectly.Report

    • Avatar Stillwater in reply to Aaron David
      Ignored
      says:

      If they keep the senate it was worth it.

      Disagree. If the GOP keeps the Senate and wins the Presidency it will have been worth it. Merely keeping the Senate doesn’t increase their chances of a more conservative-friendly appointment than Garland and makes them look like politically opportunistic fools for risking so much and failing so abysmally.

      Whether or not we are diminishing “procedure” or not is a BS argument made strictly from politics. If there isn’t a law against it, then they can do it.

      It’s not a BS argument, actually. There is a difference between “procedures” and “legally allowable tactics” in that one has been conventionally agreed upon by all participants in practice over time while the other is clearly a self-serving move motivated by self-interested reasons. Seems to me you’re only argument here is that the GOP isn’t doing anything unconstitutional by refusing to hear oral arguments on Garland.

      I don’t think anyone has ever claimed otherwise, so I’m not sure how this observation has any bite.Report

      • Avatar Stillwater in reply to Stillwater
        Ignored
        says:

        Adding: One of the strange but important aspects to this whole political SNAFU is that Obama picked a nominee that a) Dems, and liberals in particular, ought not be very enthusiastic about, but more importantly b) has been viewed very favorably by conservatives over the years. Politically, it was a clever move by Obama, but one which shouldn’t score him any points with the left, and shouldn’t be so obstinately opposed by the right.

        Yet, here we are: the fact that Obama (Pres. US – D) appointed him is the only* political issue motivating the GOP’s obstruction of Garland’s nomination.

        Adding: well, apart from Cruzers self-serving political megalomania, anyway.Report

        • Avatar Aaron David in reply to Stillwater
          Ignored
          says:

          Oh, I know what you are saying about him being a compromise candidate, but I would say that the bad blood is real between the left hand and right hands at this point, and the public is going to have to break the log jam. Or not, and collectively they are cool with it.

          As an aside, the policies and prodedures that have been accepted in gov’t politics are a reflection of trust. That trust is gone at this point, and we are falling back on the constitution and actual law.Report

          • Avatar Don Zeko in reply to Aaron David
            Ignored
            says:

            Funny how this is happening without anyone making any decisions or having any agency in the process.Report

            • Avatar Aaron David in reply to Don Zeko
              Ignored
              says:

              We all have agency here. The agency of rule of law.

              Government is the word for things we do together!Report

              • Avatar Don Zeko in reply to Aaron David
                Ignored
                says:

                So let me see if I have this right. Any change to the sub-legal rules of conduct and procedure are fine so long as it’s not illegal and doesn’t immediately lose you an election, no matter how it is perceived by anyone else in the system or how harmful the effects of that new norm might be?Report

              • Avatar Aaron David in reply to Don Zeko
                Ignored
                says:

                The problem with that is who feels the effects are harmful? If the R’s feel that they are giving Obama what he deserves, for they feel he gave it to them in the run up to taking the Senate, then you will have a hard time convincing them that this is the wrong way to handle this. And so, if they don’t feel that this is harmful, indeed if they feel is is worth the risk, then the D’s will have to overcome this another way. The bully pulpit doesn’t seem to have worked, so maybe there is an alternate method…Report

              • Avatar Don Zeko in reply to Aaron David
                Ignored
                says:

                But this only works if all you care about is which side wins in the short term. Changing the rules of the game has longer term effects that need to be thought through, and it’s unrealistic to think that the median voter is going to figure tjomgs out wisely, given that very few voters vote on the supreme Court at all.

                This precedent, if it holds, will mean very few moderate justices, long periods with vacancies on the court (including even numbers of justices that will hamstring the court’s ability to decide contentious cases), and wild swings in doctrine when a lucky president gets to confirm two or three or four reliable liberals or conservatives simultaneously. And it’ll come about because Republicans only care about appeasing the talk radio and fox news audience baying for Obama’s immediate defeat by any means necessary.Report

              • Avatar Stillwater in reply to Don Zeko
                Ignored
                says:

                Any change to the sub-legal rules of conduct and procedure are fine so long as it’s not illegal and doesn’t immediately lose you an election,

                I think the conventional wisdom on this, and I agree, is that the GOP already lost the election.Report

      • Avatar Aaron David in reply to Stillwater
        Ignored
        says:

        1. Disagree with your disagree. If the GOP keeps Senate but looses pres. then it is up to HRC to nominate someone acceptable. Or, McC needs to send her a list of acceptables. And we go back to political wrangling, this goes on to become a bigger issue in the ’18 Senate battle, people start to care more about it and it becomes an electoral issue. Or not, the court goes down to 7, and if the polity gives a rats ass at that point, it is part of the ’20 election.

        2. As to the allowable legalities vs. accepted procedure, when Obama lost the senate, and before, when we were in the inside the supermajority window, Reid went to simple majority vote. Totally legal, and not unexpected with the simple majority the d’s had. And then they lost the senate. Now, the R’s don’t have a president that will give them what they want, so we need to negotiate. And part of that negotiation is the vote next month.Report

        • Avatar Don Zeko in reply to Aaron David
          Ignored
          says:

          Setting aside what the public thinks, what do you think of the prospect of the court dropping to seven members, until the next time a President has a majority in the Senate and gets 2-3 appointments? Is that q good way to manage the composition of the court?Report

          • Avatar Aaron David in reply to Don Zeko
            Ignored
            says:

            Well, honestly, as long as it is an odd number I have no problem. And in even number times if the court breaks 50/50, drop the newest appointees opinion.Report

          • Avatar Kolohe in reply to Don Zeko
            Ignored
            says:

            The number of seats on the Supreme Court wasn’t intelligently designed; it evolved. And it can evolve again.Report

            • Avatar Don Zeko in reply to Kolohe
              Ignored
              says:

              Which is why everybody was fine with FDR’s court packing, right? Come on, guys. It’s already a bit screwy that, thanks to the vagaries of human mortality, some presidents get more appointments than others. But if your name isn’t George Washington, getting a bunch of appointments as a result of a recent change in the rules is dirty pool.Report

          • Avatar Burt Likko in reply to Don Zeko
            Ignored
            says:

            Given the volume and complexity of the cases the Court handles, I think nine is a good number. If anything, were we to tinker with the Court’s size, I’d prefer expanding it to eleven Justices.

            Which leads to an interesting possibility: it happens that we also have eleven geographic circuits for our appellate courts. Might we maybe have a rule that, as attrition allows, nominees for each seat on the Court must come from the geographic boundaries of a specific circuit? This would do something about the current concentration of members of the Court from the eastern seaboard — six of the current eight Justices hail from the Acela Corridor. Which certainly deserves representation, but so do other parts of the country.

            Just playing with the idea. Wondering if we might wind up with a more diverse intellectual palette on the bench that way. But I’m not married to it.Report

            • Avatar Kazzy in reply to Burt Likko
              Ignored
              says:

              “…six of the current eight Justices hail from the Acela Corridor.”

              @burt-likko

              In terms of where they sat previously? Attended school? Grew up?

              If the first one, a side benefit (?) might be top tier judges angling for districts that maybe don’t typically get top tier judges to increase their odds of nomination. You might see talent more spread out which would probably be a good thing?Report

        • Avatar Stillwater in reply to Aaron David
          Ignored
          says:

          Re: 1: If – and it’s a big IF since I’ve heard no one mention it as a motivation until this very thread – the goal of the GOP is to reduce the court to 7 then you may – not are, but may – be right. But right now that sounds like a conspiracy theory on the order of socialistic aliens have taken over the UN. There is absolutely no affirmative reason to think such a goal is in play.

          Re 2: I don’t see how Reid’s actions aren’t consistent with process in that limited case, to be honest. The GOP was filibustering just about every Obama court nominee (which is inconsistent with established process) and the scope of the rule change was limited to executive an lower court appointments, which falls under the power of the executive. I can’t recall the data on that, but at one point something like only 20% of all lower court vacancies had been filled. Now, whether or not you think those vacancies resulted from perfectly acceptable use of tactical obstruction, the sorta glaring fact is the GOP was engaging in more or less blanket obstruction of the normal processes by which those vacancies are filled. Ie., they were filibustering rather than permitting an upperdown vote.

          To your broader point down below re: resorting to “the law” because trust is broken: I disagree with that too, but with a bit of nuance: I don’t think it’s about trust (the rejection of Garland’s nomination ought to dispel that claim) as much as willingness to compromise. And on that score I put the blame pretty squarely on the GOP. Cleek’s Law isn’t just a cute term, after all. It’s an actual electoral strategy, one that places defeating Democrats as the sole mission of conservatives with absolutely no attention directed towards actual governance.Report

          • Avatar Stillwater in reply to Stillwater
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            says:

            Cleek’s Law isn’t just a cute term, after all. It’s an actual electoral strategy,

            One which came back to bite em in the behind in the primary.Report

          • Avatar Aaron David in reply to Stillwater
            Ignored
            says:

            You know how to solve this problem @stillwater ?

            Win down ticket elections! Is it hard? Yes. Does it mean giving up on pet projects? Maybe, at least on the timeline you like. Someone here keep asking if it is worth it to give up on many Dem. dreams just to get the white working class vote. Well, this might be your answer.

            (Goes for R’s also, but in the up ticket category.)Report

            • Avatar Don Zeko in reply to Aaron David
              Ignored
              says:

              Wait, so the solution to GOP dysfunction is to always win elections? That works short term, but they’re going to win power eventually, and if it’s still the party of rush and cleek’s law, that’s a problem.Report

              • Avatar Aaron David in reply to Don Zeko
                Ignored
                says:

                No, because then it is what the people want.

                That is the whole point of politics. If the polity wants the party of Rush and Cleek, then that is what they should get. What the D’s want is relatively unimportant. The job of the D’s is to convince the public that their vision for the future is better than the R’s. And conversely the same goes for R’s.Report

              • Avatar J_A in reply to Don Zeko
                Ignored
                says:

                @don-zeko ; @aaron-david

                Regretfully, both of you are right.

                The Dems need to find ways to start winning down ticket elections. Among other things, the lack of down ticket democrats reduces their bench, and hamstrings their policies.

                But blowing out every precedent of comity in order to defend yourself from a challenger from the right will make the country ungovernable. And once the GOP fails (again) to deliver what they promised to their base, they will be nevertheless replaced by more partisan players, that will further destroy the system.

                It won’t be pretty, and it won’t last forever.Report

              • Avatar Aaron David in reply to J_A
                Ignored
                says:

                And that should lead to Dem control, but as they have very little success down ticket, it will lead them in the same direction.

                Regress to the mean!Report

            • Avatar trizzlor in reply to Aaron David
              Ignored
              says:

              Given that Obama now has higher public approval than any other elected institution and Clinton is on track to sail through the election for a historic third term, I think this is precisely backwards. Republicans are continuing to take high-risk positions and losing. As the OP points out, either McConnell will have to give in to a more liberal Clinton nominee, or he will have to renege on the “let the people decide” narrative that he himself has pushed. No good options there.Report

              • Avatar Aaron David in reply to trizzlor
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                says:

                Then it should be no problem to take the Senate, get your guys confirmed. It will just take a couple months longer, no? And at that point they will get to nominate someone even more to the lefts liking, no?Report

              • Avatar Stillwater in reply to Aaron David
                Ignored
                says:

                But now we’ve moved from discussing whether the concept of process is a bunch of nonsense to how even if it isn’t democracy is an expression of the will of the people, no matter how fucked up their views might be.

                I’ve totally lost the plot wrt your argument, Aaron.Report

              • Avatar Aaron David in reply to Stillwater
                Ignored
                says:

                How is this not democracy? This is actual democracy, the process and procedures are simply bullshit. And if Trizzlor is right, then this doesn’t matter, as the Dem’s will get what they want (even better!) in just a couple months. But, as I have been saying with regards to McC’s gamble, that might not happen. The Rep’s hold the Senate, and Merrick falls by the wayside, HRC (assuming she wins the brass ring) is SOL. The will of the people (collectively) at that point is to say they don’t want Trump, but don’t trust HRC with the keys to the kingdom. That is the point of my argument, that and if the Dem’s want to change some of that calculus, they need to get out there and start winning states that are red, at least at the Senate level.Report

              • Avatar Stillwater in reply to Aaron David
                Ignored
                says:

                How is this not democracy? This is actual democracy, the process and procedures are simply bullshit.

                Now I’m even more confused. Are you suggesting that democracy be rejected for a better system of governance?Report

              • Avatar Don Zeko in reply to Aaron David
                Ignored
                says:

                What I, and I think @stillwater and @trizzlor find unsatisfying about this, is that it’s just an argument about this specific case at this time. But whatever the norm is for what “advise and consentt” means needs to be a system that will work going forward. If we dodge a bullet for the next year or two because HRC wins with 51 Senate votes, that doesn’t solve the problem. Also, I’m a bit frustrated that you won’t say whether or not you think the bad results of this new norm that @trizzlor and I have described elsewhere in the thread are actually problems at all.Report

              • Avatar trizzlor in reply to Aaron David
                Ignored
                says:

                I’m imagining this kind of apologia over the Watergate break-in:

                1. Don’t care, Democrats would’ve done it too if they could. Everyone is equally bad at all times and is thus absolved of criticism.
                2. And why do you care? If the voters don’t like it they’ll elect a Democrat next time and you’ll get your goodies.

                Meta commentary all the way down.Report

              • Avatar Aaron David in reply to trizzlor
                Ignored
                says:

                Maybe that didn’t happen because both side agreed that the actions of Nixon were beyond the pale. Maybe that is why we are at a stand still right now, as half the country feels that the other half is crazy, and vise versa.

                This whole argument, seems to me, hinges on one side of the fence being crazy. When they don’t agree with that assessment.Report

              • Avatar Don Zeko in reply to trizzlor
                Ignored
                says:

                That’s the glory of the argument. It can defend literally any bad behavior, no matter how toxic to good governance or the constitutional order. That kind of flexibility is necessary if you want to make excuses for an organization racing towards insanity as quickly as the trump-era GOP.Report

              • Avatar Stillwater in reply to Don Zeko
                Ignored
                says:

                Not all that long ago I responded to a comment (by Jaybird I think?) about fearing the Rise of the Totalitarian Leftist Surveillance State, and I said that since there isn’t really a “left” in US politics, or at least a revolutionary left, I’d be much more worried about that state arising outa the resentful, angry revolutionary right. And I think I was correct about that!Report

              • Avatar RTod in reply to Aaron David
                Ignored
                says:

                It absolutely is democracy, but it isn’t really governance. Which, really, is representative of what is becoming a growing gulf that separates libs and cons these day:

                In a Democratic Republic, does a government exist so that we can have elections, or do elections exist so that we can have a government?

                In a way, this question probably better define the difference between the two sides than all the various policy positions.Report

              • Avatar Stillwater in reply to RTod
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                says:

                I’d be interested in hearing your view of how you think each “side” would answer that question.

                For my part, I have no idea, tho I think the distinction is interesting.Report

              • Avatar Aaron David in reply to RTod
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                says:

                One of the reasons I left the left, so to speak @tod-kelly is the constant claims of they done gone cra-cra. Well they aren’t in the position to govern, they are in the legislative position. Their job isn’t to govern, that is Obama’s job. And when he was elected he had a mandate (both houses) to govern.

                And he had to go and show that he didn’t know how to govern. Because that is what this is. No more, no less. The county (collectively) took the keys away from him. It didn’t feel that he was on the right track.

                Which isn’t to say they think the R’s are on the right track, but that maybe both parties need a time out, until they can get their shit together. The country can run on autopilot for a while, until one or the other can get it together.

                Policies and procedures are great for greasing the wheels and getting things done. When the country as a whole wants to go in the same direction. When it is divided, they are only good insomuch as you get to use them to your advantage. Otherwise they are the tools of the devil. Right now, Obama has the bully pulpit. If this really meant something to him, if it was something he thought that he could gain advantage for himself or his party, then he gets to use that. Which is no small thing. But the Mitch McC’s of the world get to use all of their advantages also. And if it is wrong, then it should be no big deal to take the senate here in a few weeks, and clear this up. But Mitch, he has just as big a mandate as Obama. And he has a party to help lead also.

                Again, if the dem’s want to get out of this mess, they need to start appealing to the other side. Likewise the R’sReport

              • Avatar RTod in reply to Aaron David
                Ignored
                says:

                I actually agree with your central point, but don’t think it addresses mine.

                The constant argument used to be:

                A: My system of governance works best!

                B: No, my system of governance works best!

                Now it’s increasingly:

                A: My system of governance works best!

                B: Whatever. We’re going to do this thing we think sets us up for the next election cycle!

                Report

              • Avatar Chip Daniels in reply to RTod
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                says:

                Exactly this.
                The current GOP has increasingly lost the ability to craft a vision of what they want American society to become.

                If you consider Reagan’s “1984 Morning In America” as the starting point of a coherent vision of what he thought America could become, then contrast that to to the current message holders, it is obvious that the message today is first of all not delivered with any sort of coherence or focus.

                First of all, It isn’t clear that anyone speaks for the conservative cause as the undisputed champion.

                It also isn’t clear who they want their audience to be.
                Reagan could (however implausibly) claim that his vision was conducive to the concerns of ethnic minorities, at least arguably so.
                Trump can’t even muster the pretense.

                Beyond bumper sticker slogans of “balanced budget” or “fiscal conservatism” they can’t offer a vision of a budget that isn’t laughable. Paul Ryan ‘s budget is the poster child for this.

                Foreign policy- their signature posture of tough American resistance to threat has been coopted by Obama and Hilary;

                Culture and morality- given that Donald freaking Trump is their nominee, nothing more needs to be said on this point.

                Really, when you listen to their candidates speak, or their supporters, its obvious that they want very very badly to take power, to the point where they seem almost apocalyptic about defeat.

                Yet they can’t seem to speak in coherent terms as to why.Report

              • Avatar Aaron David in reply to RTod
                Ignored
                says:

                I think the central problem is that both sides think the other is doing part two. And as they are no longer trying to meet in the middle (ie truly try to appeal to the other party members for crossover votes.) Everyone thinks they are as pure as the diven snow.Report

              • Avatar Stillwater in reply to Aaron David
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                says:

                Again, if the dem’s want to get out of this mess, they need to start appealing to the other side.

                I gotta say, I’m starting to get a bit irritated about this line of reasoning. It’s very similar, eerily so, of the argument that the Democrats caused Trump. At what point, Aaron, are you gonna concede that the GOP has had it’s head up it’s ass at the national level – House, Senate, Presidential politics, Rush, Fox News, etc – and ascribe some blame to them for the current absolutely insane (on any measure of that word) state of political play?

                That point aside, another question: why is it incumbent on the ideological opponents of the GOP (whatever they stand for now or in the past) to rectify a problem YOU identify in our current politics rather than – as trizzlor said – ascribe the blame, and hence the solution, to the party that’s generated all the dischord? Hell, Obama has been willing to work with the GOP on almost every major bill that I’m aware of, and the resounding response from the GOP leaders is pure rejectionism: not only of the proposed bill, but of having any role in contributing to its structure. It’s pure political cynicism. And now that that level of cynicism has gone mainstream you want to blame Democrats for creating it?

                I don’t get that.

                Adding: Btw, saying all that I want you to remember that I’m actually a pretty vocal critic of Democrats, so it’s not like I’m being a homer on this issue. In fact, from my pov it isn’t even a political issue: it’s metapolitical.Report

              • Avatar Aaron David in reply to Stillwater
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                says:

                It’s not that you aren’t a vocal opponent. And it isn’t solely the Dems that need to do this. Both sides need to appeal to the middle more, both sides need to regress to the mean, so to speak. I phrase it like I do for the simple fact that the commentariate here is overwhelmingly to the left. And I have pointed out in my comments that the R’s need to do this also, except they need to look up ticket rather than down.

                Can you place blame on the cons? Sure. But is that going to move them to vote on Garland? Doesn’t seem to have. As I said to Tod, they think the left in the US is the problem. And they are going to stick to that story because in their eyes it is true. And looking around, many people in many states agree, hence the down ticket problems the D’s are having. The R’s are having up ticket problems, but there aren’t too many here abouts so I don’t mention it too much.

                We seem to be past the point of procedural solutions. Whose fault is that? Well, no one thinks it is something they did. So now we have to move to legalistic solutions.

                So, how do you change that? About the only thing I can see is to win elections so you are in power, democratically.Report

              • Avatar Stillwater in reply to Aaron David
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                says:

                I look at it a bit differently. We’re in a period of transition and realignment – not apocalypsis – and the primary victim in this process is also the primary actor creating it: the national level GOP.

                It was probably overdue.Report

              • Avatar Guy in reply to Stillwater
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                says:

                I think the political shifting was more likely caused by the ’08 collapse and the subsequent failure of things to go back to how they were. At the presidential level, it started in 2012 with the not-Romney parade. Congressionally it hit in 2009/2010 with the Tea Party (which ultimately collapsed and/or was co-opted, but it was the beginning). This is mostly on the right.

                There’s another realignment going on among the left, which is more social than political (though it does occasionally get political). I suspect this is related, but I don’t know how.Report

              • Avatar trizzlor in reply to Aaron David
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                says:

                Sure, that’s what will likely happen. But I would prefer we motivate the GOP to start thinking more strategically about the process they’re destroying before they become irrelevant.Report

              • Avatar Kolohe in reply to trizzlor
                Ignored
                says:

                And if they become irrelevant? Why is that bad? Won’t the anti-GOP coalition then be able to get anything and everything they want?Report

              • Avatar trizzlor in reply to Kolohe
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                says:

                Because a lot of the anti-GOP coalition wants crazy, stupid things.Report

              • Avatar Kolohe in reply to trizzlor
                Ignored
                says:

                Well, it’s Hillary Clinton’s job to lead and only get good smart things.Report

              • Avatar trizzlor in reply to Kolohe
                Ignored
                says:

                Uh, sure, lets give up advise + consent for complete gridlock punctuated by massive power grabs that depend on people like Hillary Clinton being good and smart. Or, I don’t know, we could actually criticize the GOP for self-destructive behavior that encourages this.Report

              • Avatar Kolohe in reply to trizzlor
                Ignored
                says:

                If Hillary Clinton is not good and smart, why should we elect her President?Report

              • Avatar trizzlor in reply to Kolohe
                Ignored
                says:

                You can’t tell the difference between having a good leader and having a good system? Then this is a waste of time.Report

              • Avatar Stillwater in reply to trizzlor
                Ignored
                says:

                Well, you beat me to it trizz. It seems like an intelligent conversation based around those two distinct concepts should be possible. I mean, they sure seem distinct to me.

                Adding: And of course, insofar as the two things collapse (conceptually) then Aaron’s claim that distrust is making folks recede into “falling back to the constitution and the rule of law” is rendered incoherent.Report

              • Avatar Aaron David in reply to Stillwater
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                says:

                How would that make my point incoherent? That we would have to go to the actual rule of law? Kolohe and I’s point is that if you want to get things done to your liking, ’cause the opposition is crazy, then taking the seats in congress to get that done is the answer. If you can’t do that, well maybe the people don’t think that they are crazy.Report

              • Avatar Stillwater in reply to Aaron David
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                says:

                How would that make my point incoherent? That we would have to go to the actual rule of law?

                Because the rule of law you’re falling back on is determined by the political process you reject.Report

              • Avatar Don Zeko in reply to Aaron David
                Ignored
                says:

                But this isn’t a meaningless postmodern exercise. People might well want to do crazy things, or even have bad incentives in place that reward crazy behavior. Whether or not, say, defaulting on the national debt in order to browbeat the other side into doing what you want is bad can be determinedin some way other than asking whether or not the people doing it won elections or not.Report

              • Avatar Aaron David in reply to Don Zeko
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                says:

                Well, again, maybe you need to actually get people to vote your style of government into power. Because if I remember right, when the gov’t got shut down, the R’s didn’t loose anything. So maybe they are on the right track…Report

              • Avatar Don Zeko in reply to Aaron David
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                says:

                I just have a hard time believing that you really believe in this principle, if I understand it right. If I was saying in 1941 saying that the Japanese shouldn’t have been interned, would you tell me that doing so sure seems popular and I guess I should get more voters to agree with me, or would you join me in criticizing the office holders thatade it happen? If the GOP had stood by Nixon after Watergate broke (as people like Ronald Reagan and Robert Bork did), and they didn’t immediately lose control of every branch of government, does that make Nixon’s behavior suddenly OK?

                Again, read my post above. I can make a case for why partisan supreme Court blockades are bad that makes no reference to who is currently in power or what the court is ruling on. Can you at least respond to that?Report

              • Avatar Aaron David in reply to Don Zeko
                Ignored
                says:

                No, I would not tell you that, as (in my eyes) FDR violated many laws by doing so. If there were actual laws that R Senators violated I would feel that they should be punished, as I don’t feel anyone should be above the law. But they haven’t violated any laws! Sure, you can make a case for it, and that is what you are doing here, and what Obama has tried to do with Garland. And in a month, we shall see if it made any differnce. Or if people think other things are more important.Report

              • Avatar Stillwater in reply to Aaron David
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                says:

                Aaron, I’m with Don on here. He asked about your views of the first order political issue, not your electoral meta analysis views.

                Could you speak to that issue?Report

              • Avatar Aaron David in reply to Stillwater
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                says:

                First order, I think we are at a stalemate. As to who should win at this point? Well, the Senate gets the final say on judicial appointments, Advise and Consent. I think they did there job here. And I think that Obama should use the bully pulpit to get whatever advantage he can. That is just good politics on both sides. As I said before, the R’s are doing the job they get to do, the check and balance, so to speak. The D’s don’t like it? Oh well. Payback is a [pain]. Is my answer too meta? Probably, but that is my first principal. I am not a fan of any of Obama’s picks, nor was I a fan of Bush’s picks. All of them are too big gov’t. So it does come down to what each group can do legally.

                Does that answer your question, or am I totally missing it?Report

              • Avatar Stillwater in reply to Aaron David
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                says:

                As to who should win at this point?

                Well, the issue isn’t about winning, it’s about what you think is right all things considered.

                That is just good politics on both sides.

                If the only issue in play is politics, then you’re right. But governance is an issue as well, and the GOP unilaterally, preemptively blocking any nominee from a hearing even before a nominee has been named seems inconsistent with the concept of good governance and reduces the concept of governance – just as you are doing! – to partisan politics.Report

              • Avatar Don Zeko in reply to Aaron David
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                says:

                As interpreted by the Supreme Court at the time, he absolutely didn’t break any laws. But let’s try FDR’s court-packing scheme. It was absolutely 100% legal to try to change the size of the Supreme Court for partisan advantage, and neither FDR nor his party lost control of the Federal Government after the attempt for quite some time. Was it therefore a perfectly legitimate use of his power, and everyone complaining about it just needed to suck it up and win some elections?

                The point is that it doesn’t matter that what they’re doing isn’t illegal. It doesn’t matter if it’s sufficiently unpopular to single-handedly cause the party doing it to lose all three branches of government in the next election. Suggesting that those are the only ways we can criticize the behavior of public officials is insane nihilism.

                No, my criticism is that they are putting forward a new norm which will work poorly. There are a lot of norms by which this process could be governed, and the one they’ve gotten behind will lead to obvious problems and dysfunction. Those problems are so obvious that the senators doing this aren’t willing to honestly describe what they are doing. I’ve described them upthread, and I’m yet to see a post explaining why they aren’t bad things. The GOP is doing this because they don’t care about these bad results and they do care about A) getting results they like in the short to medium term out of the court and B) not being attacked in the right wing media.

                So do we not agree that doing something in your own short-term interest that causes long-term national problems is bad behavior? Or instead will somebody, anybody, please even make an argument for how this new norm won’t be a bad thing?Report

              • Avatar Kazzy in reply to Don Zeko
                Ignored
                says:

                “No, my criticism is that they are putting forward a new norm which will work poorly.”

                In a way, this seems to be the crux of the matter: if, as a nation, we are worse off for them having done this, it indeed deserves to be criticized if not condemned.Report

              • Avatar Aaron David in reply to Don Zeko
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                says:

                One of the huge diffences between FDR and Obama is the fact that FDR had supermajorities the whole time if I remember, certainly when he did the court packing threats. And yes it was legal, and it was a stupid idea. Much like what Obama did when he had a supermajority, the ACA. Now I know much of the left thinks it is a good set of laws, but it is what lead to what we have now, in my opinion. If you remember, the R’s were in complete disarray in the post Bush era. And that supermajority action is what brought them back, half baked as they were, are.

                And remember what caused FDR to back down from that scheme, the court acquiescing to his laws. Would he have lost his supermajority if he followed through on his threat? We can’t know. Nor can we know if that would have lead us to Universal Healthcare, repealing the 2nd amendment and other progressive dreams.

                “So do we not agree that doing something in your own short-term interest that causes long-term national problems is bad behavior?” I am unconvinced that this is bad behavior. I am unconvinced that this causes long-term national problems. I am convinced that the left is super unhappy, much like the right was after the passing of the ACA by parliamentary procedures, post the MA election of Brown. But, as they say, Elections have Consequences. This is one of those consequences.Report

              • Avatar Stillwater in reply to Aaron David
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                says:

                This account seems (to me!) to trivialize political movements. Eg, the rise of FDR and his court-packing, socialistical-program loving policies arose in a vacuum, but led to a conservative backlash. Just like Obama’s ACA loving policies arose in a vacuum and led to a backlash.

                But there is a reason FDR won so many elections, and there is a reason Obama had both houses of congress for the first two years.

                As much as I’d like to think you’re making objective arguments about our political system, Aaron, I find it odd that you consistently blame democrats for all the bad things that happen politically. Eg., Obama and the Dems are responsible for their own inherent badness (the ACA), but also the post ACA badness we see from conservatives as well.

                As I recall things, the Dems won both the presidency and Congress because GOP policies under Bush were so widely reviled.

                Seems to me political swings are a bit more bilateral than you seem to think they are.Report

              • Avatar Aaron David in reply to Stillwater
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                says:

                Well, I think they are as bilateral as you do, but again, the commentary is pretty left hereabouts so I tailor my comments thus. If I talk about how bad the R’s have been historically I am going to get is a bunch of heads nodding and no real discussion. That and Obama has the bully pulpit right now.

                This account seems (to me!) to trivialize political movements

                I don’t think it trivializes them, to me it helps explain them. Why did FDR and his policies arize? Was it a reaction to Hoover not helping during the depression, causing a movement to arise to stop the pain?

                As I recall things, the Dems won both the presidency and Congress because GOP policies under Bush were so widely reviled.

                Yes, that matches my memory. It could be stated that Bush begat Obama, no?

                Eg., Obama and the Dems are responsible for their own inherent badness (the ACA), but also the post ACA badness we see from conservatives as well.

                Much like Bush was responsible for a war we all hate and at the same time for the rise of the left, as you state above.Report

              • Avatar Stillwater in reply to Aaron David
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                says:

                Much like Bush was responsible for a war we all hate and at the same time for the rise of the left, as you state above.

                I stated no such thing. But seriously, now I’m even more confused about what you’ve been arguing this whole thread. It seems to me – and I don’t mean this as harshly as it will sound, believe me, I’m trying here – that you’re just bitching that things aren’t going like you want them to. (ANd that you consistently blame Dems for that. 🙂

                But that’s not really an interesting discussion. We started out talking about the role process plays in our democracy, and you rejected the idea that it has any role to play whatsoever, adopting the view that “rule of law” ought to decide the issue. Which doesn’t sound like a solution, or even a prescription (for reasons I mentioned earlier) to any of the problems you’re worried about or frustrated by.

                But I get that. Sorta. I guess. We live in an imperfect world.Report

              • Avatar Aaron David in reply to Stillwater
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                says:

                What I have been arguing this whole thread is pretty simple. That there is no inherent right to get a supreme court appointment if the Senate opposes it. That it is a political process that gives the power for that appointment, and if the pres. doesn’t have he political power to force the appointment, then the electorate gets to make a decision to either vote in new senators or keep the ones in place denying the appointment.Report

              • Avatar Stillwater in reply to Aaron David
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                says:

                And as I said in (I think) my second comment on this subthread, no one disputes that the Senate has that formal right. So no one disagrees with you on that issue.Report

              • Avatar Kolohe in reply to Stillwater
                Ignored
                says:

                The weakness in the argument “they have the formal right, but shouldn’t do it anyway” is that’s never the way it’s worked for political power in the US.

                For instance, take the original mechanism for picking the President. The informal rules aligned with the formal rules for Washington, strained significantly under Adams, then broke completely when TJ and Burr tied.

                The answer wasn’t to argue that Burr needed to go back to the informal rules. The answer was the change the formal rules.Report

              • Avatar Stillwater in reply to Kolohe
                Ignored
                says:

                The weakness in the argument “they have the formal right, but shouldn’t do it anyway” is that’s never the way it’s worked for political power in the US.

                Sure it is. There’s been a longheld convention that SC nominees get a hearing and a vote.Report

              • Avatar Kolohe in reply to Stillwater
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                says:

                Except for some or all of the nominees of Presidents John Quincy Adams, Andrew Jackson, John Tyler, Millard Fillmore, Andrew Johnson, Rutherford Hayes, and briefly, Warren Harding.Report

              • Avatar Don Zeko in reply to Aaron David
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                says:

                I think this argument has gone about as far as it will go, so I’ll throw in a closing point and then leave things where they stand. First, two-term presidents that fail to maintain supermajorities for their entire term in office is incredibly normal in American history. If it somehow makes Obama a failure or the ACA rank folly, then basically every American president in history is a failure.

                Second, I’ll observe that nowhere in this entire thread has anyone rebutted my claims about how this new norm will have a bad effect.Report

              • Avatar Stillwater in reply to Aaron David
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                says:

                Because if I remember right, when the gov’t got shut down, the R’s didn’t loose anything.

                Dude, what are you saying? They lost the primary. They got Trumped!Report

              • Avatar Aaron David in reply to Stillwater
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                says:

                And they lost all of the Senate seats and house seats they had gained? That is the point here, they haven’t lost them, they don’t think they will loose them, so they are flexing their muscles. TReport

              • Avatar Stillwater in reply to Aaron David
                Ignored
                says:

                I’m having a hard time keeping track of what we’re arguing about here. Do you concede that a Trump victory in the primary was a loss for the GOP? Like a horrible, cataclysmic, existentially destabilizing loss?

                Or, on the other hand, just a politically inconvenient but merely transitory loss?

                I’m good either way. 🙂Report

              • Avatar Aaron David in reply to Stillwater
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                says:

                “Do you concede that a Trump victory in the primary was a loss for the GOP? Like a horrible, cataclysmic, existentially destabilizing loss?”

                Don’t know yet, will they keep the house and Senate? If they loose both of them, yes, otherwise, no.

                Do you conclude that a HRC victory in the primary was a loss for the Dems? Like a horrible, cataclysmic, existentially destabilizing loss?

                Yes. To me that says we are past the point of stopping the imperial presidency that has scared me my entire life.

                That is part of the reason I am no longer a Dem. Along with many other actions they have taken in the last 8 years.Report

              • Avatar Stillwater in reply to Aaron David
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                says:

                Yes. To me [HRC winning the primary] says we are past the point of stopping the imperial presidency that has scared me my entire life.

                Not much to say in response except at least I now know where you stand on that issue.Report

              • Avatar Pillsy in reply to Aaron David
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                says:

                But it only counts when they do it in elections that happen in years which are congruent to 2 (mod 4)? Because the people re-elected Obama and kept the Senate in Dem hands in 2012.

                They would have had the House, too, if not for the way districts are set up; Democrats got a majority of votes for the House. Now, that’s not how the system works, and saying so is fine as a procedural defense of the GOP House majority persisting through ’12, but just chalking it up to “democracy” doesn’t seem like a very good argument.Report

              • Avatar Kolohe in reply to trizzlor
                Ignored
                says:

                Huh, I get grief even I’m With Her.

                What system are we referring to here? The Constitution as written, Senate advice and consent, etc etc – or the two party system no where written down anywhere (except in statutes designed only to perpetuate itself)?

                I think the former is a good thing but I don’t give a darn about the latter.

                If the Republican party goes away, becomes irrelevant, so be it. Aside from war, debt, corruption, mismanagement, homophobia, misogyny, racism and pedophilia, what has the 21st century Republican party ever done for us?

                If the Democrats can’t handle the responsibilty of being in charge with Republicans not even in the picture (the situation in most of the cities of the United States) – well that is indeed on the Democrats.

                If the Democrats don’t *want* to handle it, if they *need* Republicans to act as blame shields – then burn it all down.Report

              • Avatar Stillwater in reply to Kolohe
                Ignored
                says:

                Huh, I get grief even I’m With Her.

                Are you really? That’s a surprise actually. Tho I gotta say, in my own case about this, Johnson has turned into Stein-light lately – way the eff out there, orbiting in whackjob zone – so justifying a vote for him looks increasingly problematic.

                We got four candidates, three of em appear to be aliens, the fourth a robot. I’m leaning robot.Report

              • Avatar Kolohe in reply to Stillwater
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                says:

                Mcmuffin made the ballot in my state, so I have 5 choices.Report

              • Avatar trizzlor in reply to Kolohe
                Ignored
                says:

                Let me back up. What I want is for the legislative branch to hold hearings and votes on important national business such as SCOTUS appointments. McConnell’s gambit is essentially a public sector slowdown strike, in the hopes that the next boss will have better terms. And the voters agree, as demonstrated by their overwhelming support for holding hearings, and their general support of the president. The problem is that voting in more Democrats doesn’t get me anywhere. A change in norms has to be reversed very quickly or else it becomes the new norm. And the electoral system – for a whole host of reasons – is particularly bad at punishing legislators quickly, especially powerful ones like McConnell. By the time the negative effects of the Congressional GOP tactics percolate back to them many of the architects would have moved on or have plausible deniability. But the damage of their actions could have long repercussions. What would get me somewhere is folks agitating against this kind of behavior, going on record that it is in unacceptable whatever the party, getting their Congressmen to answer for it, and generally raising awareness that *this* specific tactic is unacceptable.Report

              • Avatar Kolohe in reply to trizzlor
                Ignored
                says:

                trizzlor: The problem is that voting in more Democrats doesn’t get me anywhere. A change in norms has to be reversed very quickly or else it becomes the new norm.

                I’ll buy the fact that you can’t replace Democrats with Republicans very quickly in an institution with 3 staggered classes of 6 year terms. I don’t accept that when that finally does happen, the Democrats are incapable of changing norms, either back to an old norm, on onward to a new better norm. (whatever it may be) Like Mr. Zeko said elsewhere in these comments, that denies the Democrats’ agency.

                eta: it’s also worth pointing out that Mitch himself was besieged on all sides during his last election cycle. His primary opponent is now Governor, and half of talk radio still hates him. Democrats *should* have been able to take advantage of a serious fracture in the state’s Republican party, even if the Dems are outnumbered straight up. (& they aren’t outnumbered by a lot).Report

              • Avatar trizzlor in reply to Kolohe
                Ignored
                says:

                The way we incentivise future Party X members to change those norms back is by making it clear *right now* that what Party Y is doing is unacceptable.Report

              • Avatar Kolohe in reply to trizzlor
                Ignored
                says:

                So Party X wants to sell themselves as morally superior to Party Y, and Party X members want to believe that they are morally superior to Party Y – but Party X doesn’t actually want to *be* morally superior to Party Y.Report

  7. Avatar Chip Daniels
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    says:

    I forget which other blog covered it, but there was an essay going around about how the modern GOP has become a revolutionary party, in which they are not merely in opposition to the other party, but literally consider it to be illegitimate, and any effort to combat it is legitimate.

    The word revolutionary is not a metaphor; if it is acceptable to destroy all the norms and structures in order to destroy the other party, at what point would it become acceptable to advocate open violence and assassination?

    Which is the question often asked of all revolutionary radical movements; when you step outside the law, you lose the protection of it, and the other side has the same tools and weapons at their disposal as you.

    I know full well from my own experiences, how easy it is to get carried away with revolutionary fervor, whether its Occupiers or governors talking about watering the tree of liberty. Its a bit more difficult to rein that in once someone takes you seriously.Report

  8. Avatar Mike Schilling
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    says:

    One interesting thing: no one has suggested that Flake is wrong and the refusal to hold hearings for Garland is a matter of principle rather than an excuse to gain an advantage.Report

    • Avatar Stillwater in reply to Mike Schilling
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      says:

      What principle do you have in mind? The principle that this late in an election cycle the American people should decide Scalia’s successor? (That’s been invoked.) Or the principle that Garland is unfit to serve as SC justice? Something like that?

      Since the GOP blocked the nomination process before Garland was even nominated the only principle that would apply would be either partisanly political or electoral in nature, seems to me.Report

    • Avatar RTod in reply to Mike Schilling
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      says:

      Not THAT interesting, as everyone pretty much acknowledged this at the time. Doubt there was anyone anywhere that didn’t understand this was an entirely strategic move.Report

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