Will A Repub-Controlled Senate Confirm A Democratic President's SCOTUS Nominee Again, Ever?

[SuprstitionAintthWay]

Last edited Mon Nov 11, 2019, 01:51 PM - Edit history (2)

I'm concerned that in his obsession to control the federal judiciary, Moscow Mitch McConnell wiped out all remaining vestiges of fairness, comity, or bipartisanship in this vital confirmation responsibility of the Senate's, when he refused to allow Merrick Garland to be considered for SCOTUS in 2015.

I remember just before the 2016 election when everyone, Republicans included, expected Clinton to win. There was SO much concern on the right of Hillary Clinton being able to fill Scalia's vacant seat, that (1) Trump played off it by suggesting that if he were to lose, hey, maybe as a last ditch the right's "2nd Amendment" people could prevent her nominees from reaching the bench; and (2) some Republicans were floating the possibility of doing to Clinton for 4 years what McConnell had just done to Obama for the best part of one year.

It worked to keep Obama's pick off of SCOTUS, so who's to say it couldn't be done for four years of Hillary's nominees, too?

SCOTUS would just be allowed to shrink and operate with fewer justices until a Republican president was back in the White House.

This talk didn't get tested -- so far -- because of course Trump shockingly got electoralcolleged into the presidency. He's since filled Garland's rightful seat with Gorsuch, and has further stacked SCOTUS with another loyalist to himself in the form of an angry hyperpartisan drunkard and attempted rapist.

The outrageous notion that was being floated on the right in late 2016 could still be tested, though, and relatively soon.

Let's say the next 15 months go mostly well for us. RBG remains healthy enough to continue serving through January 2021. And we win the November 2020 presidential election... both the vote itself AND, this time, that crusher of democracy the Electoral College too.

There remains a good chance we won't retake the Senate next year, though. Obviously we hope and strive to, but what if that part of the fight doesn't go our way?

Say Spring 2021 RBG retires (and lives on happily to 105 or 110). President Biden or Warren nominates a well qualifed judge to fill the vacancy. As Democratic presidents do.

What happens THEN?

Here is my concern:

I worry that although we don't recognize it yet, we are already living in an era in which no Republican-controlled Senate is ever again going to confirm ANY nominee to SCOTUS put forward by ANY Democratic president.

That Republicans regard the stakes as just too high to allow any new liberal justice a lifetime seat on SCOTUS, at all, if there's any conceivable way they can prevent it. And Moscow Mitch has showed them there IS a way to do that if they retain control of the Senate: Just refuse to consider or hold confirmation votes on any and all Democratic presidents' nominees for SCOTUS. The framers of the Constitition, mistakenly assuming at least collective good faith on the part of senators, failed to include a phrase along the lines of "and the Senate shall vote to confirm or deny the nomination within 60 days." So, McConnell has demonstrated, that's their "out."

It worked for a year. Why not four years?

And, if a case goes to SCOTUS to settle the matter, hey, it's a Republican SCOTUS.

My suspicion is that we are already in this new even uglier and more ruthless political era, courtesy of Mitch McConnell.

If we are, of course Democrats will have to follow suit and Democratic Senates refuse to confirm Repub presidents' SCOTUS nominees, too.

Putting us in a United States in which henceforth no empty SCOTUS seat ever gets filled except during those periods when the presidency and the Senate are controlled by the same party.

For historical reference as to how often that occurs, since 1900 those years look to have been:

1900 - 1912 (R)
1913 - 1918 (D)
1921 - 1932 (R)
1933 - 1946 (D)
1949 - 1952 (D)
1953 - 1954 (R)
1961 - 1968 (D)
1977 - 1980 (D)
1981 - 1986 (R)
1993 - 1994 (D)
2001 - 2006 (R)
2009 - 2014 (D)
2017 - date (R)
[ I welcome corrections to anything I might have wrong on this list ]

So if we'd been working under this more viciously partisan paradigm, call it McConnellism, all along, SCOTUS seats could have been filled during those years. But not during other years. For example, in an extreme case, from 1987 through 2000 there would have been only 2 years during which SCOTUS vacancies could have been filled.

Increasingly in recent decades both presidential and senatoral elections have been a lot about who gets to be on SCOTUS. This would lock that in that much more rigidly.


Your opinions?

Is this where we're at? Or not? I grant you it may seem extreme -- but, you have seen American government of the last 3 years, right?

As I've said, I suspect we're already in this new even more fucked-up situation regarding filling SCOTUS vacancies -- thanks a lot, Turtleman! - but we just don't know it yet.

[LakeArenal]

1. I think this election will change everything.

For the better.

Keep the faith.

I visualize Barack Obama replacing RBG.

LIFE will be good again.

[PufPuf23]

18. All of use should be visualizing Obama replacing RGB.

What a grand and excellent idea!!

[cutroot]

2. The republicans have declared war on their fellow Americans.

[Sneederbunk]

3. Repugs are concerned they will never again control the Senate.

[SuprstitionAintthWay]

9. Here's the problem. We're the majority. But the minority Repubs have a majority of the STATES.

I forget the exact numbers (split the Senate out, most populous 25 states and least populous 25, and add up the respective populations) but in the Senate the representatives of something like 20% of Americans have power equal to the representatives of the other 80%. It is an outrageously undemocratic legislative body. It is America's House of Lords and should have been stripped of power and put out to pasture long ago like the Brits did theirs, but unfortunately that's too sensible to happen here.

Hillary beat Trump by 2.9 million votes but her majority got her NINETEEN states, while Trump's minority of the vote got him THIRTY-ONE states.

Increasingly Americans are voting party, not person, and within a state the trend is towards one party winning most if not all statewide races. That helps us in Virginia, but there aren't enough Virginias. How did quality senators like Bill Nelson, Claire McCaskill, and Heidi Heitkamp lose their seats last year? They're out because their states are/were trending rightward overall, and regardless of how good a Democratic senator in such a state is, increasingly single parties are winning more of a given state's statewide elections.

Our problems winning the Senate and our problems winning the Electoral College are echoes of each other. Democrats definitely have the PEOPLE, the VOTERS, but we DON'T have the number of STATES that the Republicans do. And, bizarrely in America, counts of states matter more than counts of voters do. Here it's land... dirt... over people. Trump won 31 states with fewer votes and Hillary won 19 with more votes. That pattern it seems is increasingly being reflected in Senate election results. Carrying it over to and fully expressing it in the Senate would result in 62 Republicans to 38 Democrats. Just a hypothetical exercise, true. But given the trend of more partisan voting in statewide elections, combined with the minority Republican Party holding far more states than the majority Democratic Party... this is tough.

I'm not a fatalist. We don't accept this, we fight it and somehow win even with the odds and some dangerous trends aligned against us. To win the House last year we overcame very extreme gerrymandering. Our margin of victory in the national vote was about 8% if I remember correctly, and we needed most of that 8% to overcome the barriers Republicans erected to slant elections against us.

That said, at this juncture I'm not thrilled with our chances of retaking the Senate next year.

And my concern expressed in the opening post of this thread is amplified by Republicans' structural advantage of being able to turn a minority of votes into a majority of Senate seats.

If the Pandora's Box McConnell opened in 2016 leads to no Republican Senate ever again confirming any Democratic president's SCOTUS nominee, then it's all the more essential we retake the Senate in addition to the presidency.

[Garrett78]

13. I don't think they're too concerned about that. By 2040...

...67% of the population will be represented by just 30% of the US Senate. As liberals become more heavily concentrated in a disproportionately small number of states, our tyranny of the minority political system is going to become increasingly atrocious.

John Dingell was right in that the US Senate should no longer exist. Nor should the Electoral College, a remnant of slavery.

Expand the US House so that we don't have members representing such large numbers of people (and so we don't have such a variance in terms of how many people live within each district) and get rid of the US Senate. The US, as currently constructed, is far too anti-democratic. Of course, the problem is that the very reasons why major structural reform is needed prevent major structural reform from being realized.

[SuprstitionAintthWay]

15. Barriers to reform: Right. I believe we're unlikely to ever amend the Constitution again,

at least not to correct anything major. The threshhold for passage is too high. A lot of red state legislatures are not going to agree to an amendment to replace the Electoral College with a national popular vote. Not when the Republican Party has lost 6 of the last 7 presidential votes and seems able to win ONLY the EC. (But can we accomplish that same effect through the interstate Compact? I hope so; it's odds are better, at least.)

[PufPuf23]

21. We should make more States rather than do away with the Electoral College or Senate.

Under FDR the Democratic party was strong in rural USA. IMO the Democratic party should put more effort into rural states anyway.

What we need is more States, primarily by splitting States with large populations such as California, Texas, New York, Florida, and maybe other large population States plus make Puerto Rico a State and reform Territories into one State.

The divided States would be split based upon population but also based upon physical boundaries such as Rivers, mountain ridges, etc. Some States, California or New York, for instances, would have new states primarily urban or rural. The United States would have 60-65 States rather than the current 50.

[rampartc]

4. o doubt a rebub senate will confirm ant dem appointees

much less judges.

dems, on the other hand, are interested in a functioning government and will confirm nearly any rwnj.

[Dan]

5. Well, some dems are better than me...

If the GOP can’t confirm a Democratic SC appointment, then if the Dems get control then we should never confirm a GOP SC appointment.

Soon no SC - shit happens.

[SuprstitionAintthWay]

7. Under McConnellism adopted by both parties SCOTUS would have spells when it shrinks

...and then when a new window opens gets re-stocked with a rush of new justices all at once. All of the new confirmees being liberal or all of them conservative, of course.

The centuries of the Court's gradual shifts in ideology might be over. The swings left or right could become immediate and severe.

The SC could withstand operating understaffed for decades at a time. It could function down to 3 justices.

Or, with difficulty, 2.

Or even 1 (...who'd get to be "Chief" by default).

[PufPuf23]

22. McConnell has to go whether by election or having consequences to his corruption

of the Constitution and nation.

Perhaps we need an electoral mechanism where Speaker of the House, Head of Senate, and Minority leaders are voted on (or confirmed by a simple majority in a vote) by citizens rather than the extremely powerful and entrenched incumbents we suffer under.

Realize this is pie in sky and likely would need an Amendment.

[AncientGeezer]

6. But the gutter punks....you aren't forgetting the GP's are you?

[Polybius]

12. They didn't Gorsuch or Kavanaugh

Gorsuch got like 4 Democrats, and Kav got only 1.

[AncientGeezer]

8. The flaw..Sen Reid as Senate Maj. Ldr....went Nuke on appointments.

Nobody with a modicum of commonsense should have thought or expected, turtle wouldn't expand it for SCOTUS should he have control.

I screamed like a crazy person when Senator Reid pulled that trigger knowing full well the repubs would also play it....bigger and harder...well they did, and here we are.

[pnwmom]

10. The Rethugs were planning on pulling that trigger as soon as they had the chance.

That wasn't something Reid had just dreamed up.

[tritsofme]

17. Senate Republicans lost their nerve in 2005.

Though I agreed Reid had little choice but to pull the trigger in 2013, but once he did, it was clear that no future majority, led by either party, would tolerate a Supreme Court filibuster.

[VarryOn]

16. Reid effed up on that move. Nt

[In It to Win It]

25. Reid didn't have much of an option

Additionally, I believe that Republicans would have done the same thing had the roles been reversed.

[Polybius]

11. What happens if Mitch decides to let it go for a vote

And then every Republican votes no, say 48-52? Would that be a little better, or is that just as bad?

[SuprstitionAintthWay]

14. Good question. The outcome is the same but at least the Senate Majority Leader

...isn't again overtly violating and defying the spirit and intent of the Constitution.

And Mitch still retains control because he wouldn't allow a vote to occur unless he knew he had the votes to defeat the nominee.

So, same effect, the SCOTUS world has still changed in the same way. Just less flagrant an offense against the Constitution on the part of the Majority Leader.

[tritsofme]

19. I think they would let a nominee hit the floor who would not change the ideological composition

of the Court, i.e. Ginsberg.

No guarantee that the nominee could win a majority, but I doubt we would see a full on Garland style blockade.

[SuprstitionAintthWay]

28. I'm not so sure. I think Turtleman is hell bent on a 6-3 advantage in justices

...being his legacy.

If not something even more lopsided than 6-3.

Of course if RBG dies anytime during Trump's term, rest assured they'll drop McConnell's made-up "principles" of 2016 and rapidly fill her seat to get that 6-3 advantage. If she dies even just 3 days before the inauguration of a Democratic president in January 2021 I think Trump [edit: or whatever Repub is president] will name his nominee that same hour and Grassley and McConnell will put the Senate to work around the clock to confirm a replacement before noon on inauguration day, tossing out any procedural rules that might keep them from that goal.

Under the happier assumption that RBG is still with us in February 2021 under a new Democratic president, if McConnell is still Majority Leader, my great concern, stated in this theory, is he will still "Garland" her seat, sequestering it for 4 years, if she tries to retire. Any other seat that becomes vacant, too. And the only way we'll ever get another liberal onto SCOTUS is by holding both the presidency and the Senate at the same time.

McConnell and other Republicans are deathly serious about padding their advantage on SCOTUS. And with the youngest and most rightwing justices possible, of course.

[tritsofme]

30. I don't disagree substantively, I just don't think it would be a Garland style blockade.

The optics would be terrible, they may have hearings, and even votes on the Senate floor, continually reject the Democratic nominees, potentially several of them until they run out the clock.

[SuprstitionAintthWay]

33. I agree that this same blocking of any new Dem-appointed justices may well be carried out...

as you describe, with the nominees being given essentially sham hearings and votes, for show, and then voting them down every time for the duration of the Democratic president's term.

McConnell accomplishes the same thing, just in a slightly less provocative way.

[sandensea]

20. No doubt about it

Turd Blossom Rove liked to remind Bush toadies that "politics is war by other means" - and that's exactly how the GOP sees it.

No quarter will ever be given by those cretins - not for the foreseeable future. The country be damned.

[NCLefty]

23. We need to steal back the seat we lost (and a punitive one--else they won't learn).

[In It to Win It]

24. I remember reading...

articles at the time of the 2016 elections that several GOP senators (including John McCain) were floating the idea of holding the SCOTUS seat open during the entire presidential term should Hillary win the election.

[SuprstitionAintthWay]

26. Treating Scalia's seat like it's their property,

like no one had any right to hold it other than one of them.

After terms of Nixon, Ford -- designating Carter as just a mistake, a brief one-term aberration! - Reagan, Reagan, and Bush I, they treated the presidency that way, too: Like it was Republican personal property. They treated Bill Clinton with contempt, speaking of him as not even a legitimate president -- how dare that hillbilly occupy the Republicans' White House?! And of course that was just their warm-up act for how dismissively they'd treat Obama for his 8 years.

[rwsanders]

27. That is why I still say that Obama should have issued an executive order simply stating

that the senate had to vote on his nominee. That it was his SCOTUS seat to fill whether the vote took 1 week, 1 month, 1 year or 10 years.
Without that clarification, it will be chaos until the republican party is dead.

[tritsofme]

29. That is not...a thing.

The president cannot force the Senate to hold votes, no one can. I don’t know where you got this info, but it is nonsense.

There’s nothing President Obama could have done to force a clearly recalcitrant McConnell to act, it is revisionist history.

[SuprstitionAintthWay]

31. There were in fact a few lawyers counseling at the time that Obama

...should consider declaring that by choosing not to vote the Senate had abdicated on that responsibility, and in doing so effectively consented to his nominee. And then ordered his nominee to proceed to the Supreme Court bench and take his seat there.

Audacious, yes. Would it hold up to court challenge? You're right, probably not. And as a constititional lawyer Obama knew that.

But, how much more outrageous would that argument have been, really, than what McConnell was doing?

And, as we've seen, when we let the Republican crooks get away with things, that line they've crossed becomes their new standard... the point they start from for their next offense against American democracy. Thus their talk later in 2016 of refusing to consider all SCOTUS nominees made by Hillary for a full four years.

If we discover we are in fact now already in permanent McConnellism regarding filling SCOTUS seats, down the road Obama may, in retrospect, wish he had at least attempted that, answering their outrageous offense with a countering offense of his own.

[tritsofme]

32. Lawyers are free to spout nonsense, just like everyone else.

McConnell violated norms, not the Constitution. There is no constitutional command that hearings or a vote take place. That is not to say what he did was correct or in any way justifiable, those are just the facts.

And it is not a matter of it “probably not” holding up, it’s not even close, not to mention a dangerous and reckless assertion of unlawful executive power.

Dozens of presidential nominees are returned to the White House every year due to Senate inaction, from a constitutional perspective, Garland was no different.

These are purely political problems, and there is only one political solution, to win the White House and the Senate.

[SuprstitionAintthWay]

34. In a reply above I wrote McConnell overtly violated & defied the SPIRIT & INTENT of the Constitution

I stand by that.

[rwsanders]

35. Executive orders aren't a thing?

I didn't say he had to force a vote, only that they had to consider a nominee that he presented no longer how long it took. I'm sure the framers of the constitution never considered that a Senate would refuse consideration of a presidential nominee. The intent was balance of powers. What McConnell did was a clear violation of the balance of powers.

[tritsofme]

36. I guess I don't understand what you think such an executive order would accomplish?

I suppose you could ”issue” it, but it would be meaningless Executive orders instruct executive agencies how to act, not a house of Congress.

All nominees that fail to receive Senate action are returned to the White House each year, with the end of each session of Congress.

McConnell surely violated norms and abused his power with regard to Garland, but in our system, it was power he had, something future Democratic leaders must remember.