The horizon is not so far as we can see, but as far as we can imagine

The Supreme Court Replacement of Justice Kennedy

So, Kennedy is standing down, and Trump will get to choose his replacement. A few points.

  1. Of course Democrats should not allow a vote until after the next election, since that’s what the Republicans did with Scalia’s replacement, which should have been Obama’s to make.
  2. This is not about the principle of people getting to vote (they did.) Republicans did not stop Obama replacing Scalia out of principle “the American people should have their say”, they did it because they had the power to do it and were willing to use that power.
  3. Democrats have the power, but will not use it, even though they should because they don’t really mind a conservative justice on the court: they agree with such a person on more important issues than they disagree with them on, and they value civility more than ethics.
  4. And yes, this is the Roe v. Wade loss point. That’s what Senate Dems will not sincerely fight for.

I hope I am wrong on 3 and 4, but Democrats do not have a record of fighting against the right, only against the left.

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  1. NR

    How do Democrats have the power to stop the confirmation? They are in the minority in the Senate and the Republicans removed the filibuster.

  2. Holden Pattern

    What NR said.

  3. bob mcmanus

    Well, theoretically Snow and Murkowski have said they will not vote for an anti-abortion justice, so that takes it down to 49, if you believe them.

    But then Senate Democrats are not monolithic nor a disciplined parliamentary party, and many are guessing that enough Red State Dems, Manchin, Donnelly, Heitkamp will break and vote to confirm. And then maybe switch parties.

    Another tactic is denying a Senate quorum, but this is pretty difficult, and see above.

    How long does RBG suffer in the minority, watching everything get destroyed by hacks. I think Trump gets at least one more in the second half of his first term, and wouldn’t be shocked at 7-2 by 2024.

    The women won’t really fight for abortion, they never have, but African-americans and LGBTQ may hit the streets and more at late summer and it will be a violent and disgusting midterms.

    Mainstream Democrats will blame Bernie and the Left and much of their violent irresponsibility will be directed at softer targets than Republicans. This is going to get very bad for anyone not Republican who doesn’t completely submit, and I would watch where and how you interact online. There is no limit to their self-rightousness and justification.

  4. NR

    Quorum in the Senate is a simple majority. So there’s no way to deny the Republicans that.

  5. The Democrat leadership already is telegraphing that they’ll collaborate with Trump.

    They’ll collaborate for no reason other than that they agree with the Republicans about everything important and therefore see no reason not to put whoever the Reps choose on the supreme court.

    This is after all the shrill ad nauseum shrieking of “supreme court! supreme court!” from the Dembots.

    Goes to prove what I’ve long said, even on abortion there’s practically no difference between the parties. They have consensus that abortion should be freely available for the rich, less and less accessible for everyone else. Roe v. Wade was always misdirection, and this will prove that once and for all.

    Of course the morbidly Dembotic like the first two commenters will always find excuses for why their Leaders somehow never can fight. Somehow the Dems also couldn’t do what they wanted in 2009 when they had 60 senators, and the same Dembots had excuses for that too.

  6. Holden Pattern

    Not sure how pointing out simple math makes one “morbidly Dembotic”, but whatevs.

  7. mike

    as long as mccain is in treatment for his cancer, the dems do have the power to stall the appointment until after mideterms..

  8. NR

    The Senate is 51R-49D.

    With McCain not voting, it’s 50R-49D. Still a majority.

    So no, the Democrats do not have the power to stop the confirmation.

  9. different clue

    I remember reading once that any single Senator could put something called a ‘Hold’ on a judicial nominee . . . including a Supreme Court nominee, for any reason or for no reason at all. Is that still true? Do the Senators, or does any one Senator, still have ” the Power of the ‘Hold’ ” quite separate and apart from the judicial nominee filibuster they no longer have ( because the Democrats didn’t believe in using such a weapon themselves and didn’t want it to exist anymore) ?

  10. different clue

    By the way, I remember the name of the self-styled libertarian journalist who invented the “rotating villains and heroes” theory of handing out the Yes versus No votes among the Democratic Senators. The name is Glen Greenwald.

  11. bob mcmanus

    The hold or blue slip is for lower court judges but not SCOTUS, involves a senator and an appointee from and for her own state, was violated by Republicans but last I heard is still a Democratic ideal.

  12. Synoia

    I hope I am wrong on 3 and 4, but Democrats do not have a record of fighting against the right, only against the left.

    The Democrats often claim to fight (usually when asking for money), but rarely put up campaigns which are so popular that they can “win.”

    Professional Losers?

  13. Hugh

    Rule VI of the Senate reads as follows: “A quorum of Senators is a simple majority of sworn Senators, according to the Standing Rules of the United States Senate.” Since there are currently 100 sworn Senators, that means 51 Senators are needed for a quorum. The Republicans have 51 Senators. McCain is still a sworn Senator although not present. So no, in the absence of McCain, Republicans by themselves could not a quorum. The Sergeant-of-Arms could be sent to compel presence but he would need to find absent Senators first. I would suggest an extended Democratic conference in our hostile neighbor to the north, you know Canada.

    It is important to note that most Senate business is conducted through unanimous consents. If Democrats wanted, they could simply stay suggest an absence of a quorum whenever the actual number of Senators dropped below 51, or even just randomly, reject all unanimous consents, and require that the Senate strictly follow its own rules. This would effectively freeze all activity in the Senate.

    Democrats could do this. They could do some of this, but they won’t because they are worthless and stand for nothing.

    And if any Dems blame you for not voting for the Hill, remind them that if they run shit-awful candidates you have no obligation to vote for them. If they want your vote, tell them to run better candidates.

    Re Kennedy, he is a reactionary. His opinions were badly written and a muddle. Roberts by contrast wrote much better BS although the argumentation was as bad or worse. About the only time he would not vote with the Court’s other reactionaries is when and if he thought someone was encroaching on judicial turf as in Boumedienne (2008). He didn’t really care that Boumedienne would be circumvented by judges at the district level. What was important to him was that conservative judges and not the Executive were doing the circumventing.

    Finally, I would just note again that the Supreme Court has always been for the powers that be and against ordinary Americans for all of its history except for 20 years in and around the Warren Court from Brown in 1954 to Roe in 1973.

  14. Chiron

    Federal Judges have too much power, not only in the US but the also in Latin-American countries, in Brazil a Federal judge destroyed the main Left-wing party with the support of American think tank.

  15. someofparts

    Well, needed to get off my lazy duff and get a passport anyway. Powerless to persuade my fellow American frogs to hop out of our slowly heating boiler and can’t afford to retire here anyway. Probably need to make it to Montreal before they build a border along that wall too. Wonder how long it will take my fellow citizens to realize that the walls are being built to keep us in, instead of the other way around?

  16. Not sure how pointing out simple math makes one “morbidly Dembotic”, but whatevs.

    Indeed, I tried pointing out simple math to the likes of you in 2009 and got nothing but blank stares.

    As for today, anyone who knows anything knows there’s a million procedural ways to obstruct senate business for anyone who wants to get down and dirty and fight. Hugh lays out some.

    But of course the Dems never want to fight. And part of the reason they don’t have to is because Dembots (we see two examples in this thread) don’t want them to and help them find excuses not to.

    I myself would never support anyone not willing to do whatever it takes to win or, failing that, to obstruct the enemy. Parliamentary math is seldom an insuperable problem. Morbid refusal to fight is.

    But like I said earlier, the Democrats aren’t really “refusing” to fight; they don’t want to, and their die-hard bots don’t want them to.

  17. Tom W Harris

    The Dems do fight. They fight their base.

    And they hardly ever lose.

  18. someofparts

    Did not realize that the Warren court was an anomaly.

    Simple though I am, I can remember what life was like under Jim Crow statutes. I remember that my mother was the only woman on our street whose husband allowed her to have a car.

    Even back then, as now, people who were lucky were fine with every bit of it, and those who were not lucky suffered horribly. Good times!

  19. Tom R

    We are in this mess because American voters in three swing states (or five if you count Pa and Fla) didn’t vote for Hillary, the only candidate who could stop Trump. She wasn’t Tweedledee. She was an established champion for women and girls, but enough “principled” voters thought Jill Stein (Mike Flynn’s dinner companion with Vladimir Putin) was a better choice. Or maybe a libertarian from New Mexico. There’s also plenty of Dem voters that just didn’t vote in key states. They could have, but they didn’t. Maybe they thought drones were more important than the Supreme Court. Or that Dems don’t do enough for people of color. Well now a young conservative Supreme Court will take down just about any progressive achievement you can think of, for decades. Nice going not voting for Hillary. I voted for Bernie then for Hillary. That’s the only way it works.

    Some of you tiresome leftist cynics need to understand how progress is achieved and maintained, and it often starts and ends with the Supreme Court. Sure Dem senators should try every parliamentary trick until the election, but they shouldn’t be in this mess in the first place.

  20. NR

    LOL. “Dembots.”

    “As for today, anyone who knows anything knows there’s a million procedural ways to obstruct senate business for anyone who wants to get down and dirty and fight.”

    Indeed. Just as anyone who knows anything knows that Senate rules can be changed at any time with a ruling from the Senate president (that would be Mike Pence, in case you were unaware) and 50 votes to sustain it.

    It is very amusing to be called names by someone proudly waving their ignorance around for everyone to see, though.

  21. Hugh

    Truman’s desegregation of the Army and the Warren Court’s decision in Brown were the first two major steps in dismantling Jim Crow.

    The Senate votes on its rules every two years at the beginning of a new session. There are certainly ways of changing rules but this has seldom been done, even by a POS like Mitch. There are certain basic concepts like the nature of a quorum or unanimous consent which Mitch would have great difficulty in changing without destroying the Senate. If an institution has no rules, then it really ceases to be an institution.

  22. Ché Pasa

    Why do we even have a Senate? For the same reason we have an electoral college: to thwart the rabble. If people understood that, they would understand why it takes forever and a day to pass beneficial legislation for the masses, why doing what’s right seems to be nearly impossible for our rulers, why Trumpism is a con, phony populism, and why Dems in office are so useless. It’s the system, it’s the way it’s set up, it’s meant to be that way.

    The Warren court was an anomaly in some ways, and I think it was because Earl Warren himself grew a conscience of sorts. When he was California Attorney General, he was a prime advocate of Japanese -American internment, and as governor he had no qualms about it. But many Californians were deeply offended by the removal of their Japanese-American friends and neighbors, and some of the ones who were, were people who mattered and had Warren’s ear. Over time, he seemed to understand the horrible wrong he had had a major hand in perpetrating, and he seemed to recognize that wrong was of a piece with Jim Crow and worse that had long been perpetrated against minorities and the powerless in this country. California was notorious for some of the worst of it.

    He realized that as Chief Justice he wasn’t powerless, the Court wasn’t powerless, and they could correct some of those past wrongs. Or at least try to.

    Those of us who remember Justice Kennedy from McGeorge Law School knew all along that he was a reactionary, and the whole liberal icon/swing vote hagiography was a crock. He represents a conscience-free, rightist notion of law, as we see in his final term rulings with a vengeance. So his retirement now — and likely return to McGeorge — doesn’t really change things much on the Court. Another reactionary rightist will be assigned his place, Democrats will not thwart the appointment, and that will be that.

    What might have changed things — Garland, and whomever Hillary might have appointed — could have angered the Overclass because in time it might interfere with their freedom to plunder and exploit at will.

    There will be no chance of such interference now. Hallelujah!

  23. Democrats, when they came to control Congress in 2006, were going to stop the war in Iraq and reverse the “Bush tax cuts.” Instead we got “the surge” in Iraq, and no bill ever came to the floor to change federal tax rates in any way until 2012, six years later; a rather meaningless increase of the top rate from 35% to 39.6%.

  24. NR

    “There are certainly ways of changing rules but this has seldom been done, even by a POS like Mitch.”

    He did it just last year to stop the Democrats from blocking Gorsuch’s Supreme Court confirmation. He obviously wouldn’t hesitate to do it again.

  25. nihil obstet

    The major Warren Court decisions made sense to me — they protected rights that could not be protected through the ballot box because of disenfranchisement, whether you’re talking about Jim Crow or one man one vote. It also made sense to me that unenumerated rights could be protected, in light of the 9th amendment, so that privacy rights could be ruled to protect abortion and same sex marriage. However, most of the decisions between two parties decided by the court are simply policy preferences. Let’s end them.

    We should reduce the terms from lifetime appointments. Off the top of my head, I’d argue ten years. At the end of ten years, the judge could be reappointed and go through another confirmation process. This would take a constitutional amendment to do. We should restrict the policy matters on which the court can rule. I don’t know whether that would require a constitutional amendment or not. The court would of course overturn it, but they’ve tossed the constitution anyway. The fourth amendment has been toast for a while.

  26. Willy

    …a confirmation process that might include discerning any potentially ‘contaminating’ relationships, like the one Kennedy may have had with Trump.

  27. BlizzardOfOzzz

    Hey Willy, ethics lesson needed. Let’s say I enjoy sport-f**king as much as I can because it just feels so good, and ultimately everything is just dead atoms bouncing off each other, so why not right? But protection is such a buzz kill, and then I accidentally create a new life, which is REALLY a buzz kill. So then it’s either the end of the party, or I put an end to the new life (which is really just a bunch of amino acids and stuff, which in turn is just dead atoms, so it’s not really life anyway when you think about it). No-brainer of a decision, right? But then unethical Trump voters want to say I can’t do that, which is a total violation of my freedoms. So my question to you, sir, is: why are Trump voters so unethical?

  28. Hugh

    McConnell obstructed the Obama Administration for 8 years. He did it when he was in the majority and when he was in the minority. He did it by working the procedural machinery. All of a sudden now that the positions are reversed Schumer is powerless? The Democrats too have procedural weapons if they want to use them. McConnell can counter some of these but he can’t counter them all without destroying the institution, and however worthless Senators otherwise are many of them will resist the destruction of their club, not for the good of the country but because it is their club and their privileges at stake.

    I think all of us know that the Democrats will mount at most a kabuki opposition. Democrats are bankrupt. They stand for nothing. But look at McConnell, scheming to do the bidding of a man who has destroyed the Republican party McConnell grew up in. The Republican party today stands for lawless one man rule, and there’s Mitch leading the charge because at their core the Republicans are just as empty, just as nihilist as the Democrats.

  29. Hugh

    An argument I have been thinking about and which I now see mentioned in the media is that there is no Constitutionally-mandated size to the Supreme Court. In future, the current make up of the Court can be changed simply by adding more Justices.

    Also I would note that all Article III, Section 1 says is “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” It does not say anything about lifetime appointment. If you define good behaviour as in part being willing to leave after say 10 years and bad behavior as an unnatural desire to hold on to office and power for more than 10 years, then problem solved.

  30. Hugh

    Sorry for the multiple comments. I should have added that if the Framers had wanted to say “lifetime appointment”, they would have said “lifetime appointment.” They didn’t.

  31. NoPolitician

    If it is perfectly legal to expand the Supreme Court, then would it be perfectly legal to contract it? And then expand it later?

    Clearly not in the spirit of the rules, but Republicans have shown that the spirit does not matter – there are no norms – it is now the letter of the law that matters. And if there’s nothing preventing it, it is at least worth a try.

  32. someofparts

    Well, if I try to get past my own American exceptionalist blinkers that scruf was nice enough to point out (and thanks for that btw), the disarray and creeping impoverishment of the U.S. could be a wonderful thing for the rest of the world. Everyone south of our borders could continue to elect genuine populist (in the good, not faux, sense) leaders who would (absent our intervention) actually survive to put wholesome policies in place. The nations of the middle east could begin to rebuild somehow and maybe without American money and guns the Saudi genocide in Yemen would stop and the rest of the Arab nations could agree to build a wall around Israel.

    Yes, I know that real life and real politics are so very complex and what I described above is a wish list of ideal outcomes, which would themselves somehow go wrong in the real world. That said, I think my main point still holds – that an extreme reduction of American international power could be great for the rest of the world. Eventually, as China took over the role of dominant global power, including the power to make weapons for everyone else, they would become as bad as we are, but until that time all the other nations of the world would have a chance to breathe and develop decent policies and economies.

  33. It has long been my contention history, if there is a history, will record the appointment by a radically stacked activist court of unelected judges of the scion of old school, blue-blood robber baron Hitler financing money with indiscernible intelligence and limited education and experience who had been AWOL from the Texas Air National Guard while I and mine were pulling eighteen day tours in-country to the highest office in the land as The End of “America”. We’re here on momentum.

    How do you go AWOL from the National Guard?

  34. different clue

    It is thought by some that if we would have had a Sanders versus Trump election, that Sanders would have won. But the Clintonites-in-authority rigged the nomination process for Clinton and Clinton got gifted the nomination. So she ran the campaign she ran, featuring disrespect for the disemployed and marginally employed Americans of the non-coastal states and full support for the International Free Trade Conspiracy. She boycotted Michigan and Wisconsin entirely. Michael Moore, no friend of Republicans, predicted a Trump victory based on his perception of the rejection of Clintonism in what he called the Brexit States.

    So Clinton lost and Trump won and the rest is history.

    Nominations have consequences.

  35. Heliopause

    May I point out that the US Constitution has zilch to say about whether the President needs a good reason for whom he nominates or the Senate for whom they consent. All of this back and forth between the Ds and Rs is just pantomime for the elite media centrists who demand it. An honest D senator with convictions would simply announce, “I’m not voting for a reactionary justice, ever, period,” and that would be perfectly fine with me.

  36. Billikin

    Just one point to add to the conversation. It isn’t just that the Democrats do not turn out to vote (and have had their votes suppressed), it is that there are plenty of people who would vote for Democrats if they were registered to vote, and the Democrats made the effort to register them and help them get to the polls. The Dems did that 50 years ago. If they don’t do that now, it is because the Dems don’t really want their votes.

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