Cartoon: We can’t do THAT! It’s MEAN!


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I actually wrote this cartoon months ago, during the Democratic primary, out of frustration that so many Democratic Senators refuse to consider steps like ending the filibuster (fun fact: named after Buster Filly, an 1840s senator/drunkard who was famous for snoring so loudly in the Senate chambers that no work could be done), making D.C. a state, and (of course) expanding the Supreme  Court.

Meanwhile, the GOP seems to have few or no limits. And that becomes yet another structural disadvantage for Democrats; not only are Democrats often unable to win even with a majority of votes, due to gerrymandering (fun fact: named after Jerry Manders, who is famous for playing the title character on the TV show Leave It To Beaver) and the electoral college, but even when Democrats do manage to be a majority of elected officials, they are made unable to appoint judges or pass laws.

I’m particularly frightened by the prospect, brought up in this cartoon, of Republicans using their control of the Supreme Court to make it easier and easier for Republicans to suppress Democratic voters. (I’m still not over Bush v Gore, to be honest.)

But a few months ago, the cartoon seemed to me to lack focus, and I put it aside.

But now, with the sad passing of Justice Ginsberg, it took very little rewriting to give the cartoon focus.


One interesting thing about this cartoon, for me, is that it has the potential to be outdated very soon – Senate Democrats definitely seem more open to ideas like increasing seats on the Supreme Court. At last night’s astoundingly terrible presidential debate, Joe Biden declined to rule out either increasing seats on the court, or getting rid of the filibuster.

So we’ll see what happens. If this cartoon becomes moot, I will be delighted.


TRANSCRIPT OF CARTOON

This cartoon has four panels.

PANEL 1

A large caption at the top of the panel says “REPUBLICANS.”

We see several people, most or all of whom seem to be white men, standing in some sort of business or office space. One man is speaking to the others: He is bald on top, and wearing an open suit vest over a shirt and striped necktie. He is grinning and gesturing as he speaks.

VEST: When Obama nominates for the Supreme Court, we just won’t allow a hearing.

VEST: We’ll make up some excuse, like, uh… We can’t confirm a new Supreme Court Justice close to a presidential election.

PANEL 2

A close up of Vest, who has steepled his fingers a bit below his chin, and is looking up a bit, perhaps staring at the beautiful future his imagination is conjuring.

VEST: Once we own the Supreme Court, we’ll step up on policies making voting harder for Democratic-leaning groups like Blacks and students!

VEST: Gerrymandering, closing polling places, and harsh voter ID laws are just a start! With the Supreme Court on our side, we can do anything!

PANEL 3

One of the other white men in the room has stepped forward, looking anxious as he asks a question. Vest just throws up his hands and grins.

ANXIOUS GUY: But what if there’s an open Supreme Court seat close to a Presidential election when a Republican is president?

VEST: Screw it, we’ll confirm ’em anyway!

PANEL 4

A large caption at the top of this panel says DEMOCRATS.

The panel shows a tablet being held in someone’s lap. On the tablet, we can see three people, a woman and two men, talking in a Zoom-like program. The woman looks determined, shaking a fist; the first man looks a bit afraid; and the second man is holding his hands on either side of his face and gasping in horror.

WOMAN: If we get the White House and congress, we should add seats to the Supreme Court.

A BIT AFRAID: We can’t do that! It’s mean!

GASPING MAN: Gasp!

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42 Responses to Cartoon: We can’t do THAT! It’s MEAN!

  1. 1
    Corso says:

    I, perhaps unsurprisingly, disagree with you here.

    The issue with Democratic court packing is that it’s both abnormal and fundamentally institution-breaking.

    Abnormal in that in the 300 years since the creation of SCOTUS, the number of seats on the court has gone from 6 to 9, in four different acts of congress ( 1, 2, -1, 1) and adding four or five more seats to the court because the people sitting in it aren’t partisan in the way you approve of would represent one of the biggest changes to the American political landscape since Hawaii became a state.

    Institution breaking because of the way that the system was supposed to check-and-balance. American politics gives power to three separate, *co-equal* branches of government: The Executive, the Legislative and the Judicial. If the Democrats pack the court in 2021, they will fundamentally cripple the Judiciary. Every time an election swap happens (and believe me, Democrats won’t form government forever) more judges will be added to tilt the perceived partisan balance of the court until there are as many SCOTUS judges as there are representatives in the house, which would basically make the Judiciary an outgrowth of the Legislature. One could argue that that’s not a bad outcome, but that doesn’t change the fact that it fundamentally undermines the basic structure of American Democracy. The legitimate way to do it would be to amend the constitution, but frankly Democrats never seem to think these systems need overhaul when they have the power to do it because the system seemed to work just fine for them (Obama had the presidency, the House and a filibuster proof Senate until 2010, and this didn’t come up then, despite American history being liberally peppered with “conservative” SCOTUS makeups.).

    “But Dean, what about Merrick Garland?”

    What about him? It’s not uncommon for SCOTUS nominations to not be confirmed, particularly when the nominating president is from a different party than the senate (See: Bork). I want to state this clearly: The seat that eventually went to Neil Gorsuch did not belong to Merrick Garland, and Merrick Garland was never going to sit in it. The seat was not stolen, it did not belong to anyone. My take on the situation was that Garland was a perfectly acceptable nomination, and the Senate Republicans didn’t want to go through the bad optics of declining the nomination of a perfectly good judge, so instead they went through the bad optics of giving him a hearing. This was political malpractice, because I think the optics of not holding the hearings was worse by an order of magnitude, but again: The difference between holding the hearings or not was the optics, not the result.

    “But Dean, isn’t this all really… Really unusual?”

    Not really. There’s nothing unusual about a president nominating a judge to SCOTUS soon after a vacancy opens on the court, there’s nothing unusual about the senate either confirming or denying a nominee, there’s nothing unusual about under-the-wire confirmation hearings. It’s not even unprecedented for a nomination to be denied a hearing; Adams nominated John J. Crittenden in 1828 and the Senate “postponed” the hearings indefinitely. Similarly, Edward Bradford, George Badger, William Micou, George Williams, and Edwin Stanton never had confirmation hearings (Although there was a good reason in the case of Stanton: He died). There are no new things under the sun, as it were.

    “But Dean, aren’t the Republicans packing the court by nominating Conservative justices?”

    Not using the traditional definition of “court packing” and not really, even if you twist the definition and squint really hard. Merely nominating justices as vacancies present cannot possibly constitute court packing, and even if you want to argue that “court packing” can be understood to mean “disproportionately nominating ideologically similar people to the court” it bears note Trump’s nominees frankly don’t vote in lock-step with the administration, or even themselves, particularly when juxtaposed against Obama’s nominees during his administration. If instead, you’re just worried about what the nominations could mean for, for instance, women’s rights; It bears note that Roe isn’t a Trump priority. It bears note that the only Justice who has said that they would repeal Roe is Thomas. It bears note that Kavanaugh and Gorsuch both have a documented respect for stare decisis. I seriously doubt that’s going to happen.

    And frankly, even if I’m wrong, and it does happen, at the end of the day that amounts to a difference in policy. Sure, it’s a difference in policy that negatively effects millions of people, but there are any number of policies that negatively effect millions of people. It’s still, at essence, a policy dispute. Merely being a policy you feel is disastrous does not invalidate democracy. Hell, it’s not even that unusual.

  2. 2
    Grace Annam says:

    A play, in one short act:

    Democrats and Republicans: “Let’s agree to not punch each other!” “Okay!”

    Democrats and Republicans, decades later:

    *Republicans punch Democrats*
    Democrats: “Hey! We agreed not to do that!”
    *Republicans punch Democrats*
    Democrats: “Hey! This is wrong! This is not what we agreed to!”
    Republicans: “The rules don’t say ‘no punching.’”
    *Democrats discuss punching Republicans*
    Republicans: “Hey! You can’t do that! What about our agreement?”

    Curtain.

    The question is simple: do we govern by norms, or do we permit anything which we can make an argument is legal? Until the last decade-ish, our Federal government was governing by norms. Now the Republicans have chosen to govern by what they can legally get away with, to govern by technicality. Well, that’s not good, but it’s done, and they’ve been punching enough to make it clear that it wasn’t a one-time thing; they’re going to keep punching until someone hits back. The old norm is gone. Re-establishing it will take time and a gradual re-building of norms by actually adhering to them. But for now, the new norm is that whatever the rules let you get away with is okay. And that norm was set unilaterally by the Republicans.

    This is analogous to one person punching another: it’s not legal if it’s the first punch, but it’s perfectly legal to hit back in self-defense… and when the immediate threat ends, so does the legality of hitting back.

    If the Democrats finally hit back, when the Republicans hold to new norms, the Democrats will stop hitting.

    The Republicans have already demonstrated that the reverse is not true, at least not recently.

    Grace

  3. 3
    Corso says:

    I’m sorry Grace, but that’s beyond revisionist.

    I suppose I’d like for you to describe what it is you think the Republicans are doing that violates the norm. Because in my experience over the last few years “violates the norm” is just code for “Actually kind of normal, but I don’t like it.”

    But I can give some very specific examples of Democrats recently changing legislative norms; The most recent and meaningful example being how Mitch McConnell uses the nuclear option wantonly today in large part due to how Harry Reid normalized it. That was in 2013.

  4. 4
    Grace Annam says:

    “Beyond revisionist”! Wow!

    If I tried very hard, I wonder if I could make this post beyond hyperbolic.

    My understanding, as a casual political observer, is that Merrick Garland was nominated, and Mitch McConnell (R) refused to take any action whatsoever to consider the nomination. The argument he advanced, which at the time was obviously specious at best, and is now being shown to be farcically hypocritical, was that a sitting President with 8 months left to serve could not be permitted to appoint a new justice, because a delay until after the election would permit the people to “speak” to the issue by means of the election. To my knowledge, that maneuver was unheard-of, at least in living memory, which is probably a decent definition of a “norm”.

    That’s one punch.

    Now, with fewer than eight WEEKS remaining in a presidency, with an election ongoing in which unprecedented numbers of people have already voted, many of them explicitly in response to this very situation, McConnell is taking every action necessary to get a presidential nominee appointed, in the face of widespread public opposition to the maneuver, and thereby disenfranchising people from their ability to “speak” to the issue by means of the election. To my knowledge, this maneuver is also unheard-of in living memory.

    (This is bad enough, but it’s not isolated; McConnell did much the same thing across the entire Federal judiciary, holding spots open during the one presidency and confirming them in the subsequent presidency with all the efficiency of an automated pile driver.)

    That’s two punches. And that second one is quite the haymaker.

    Both of these acts are technically legal, or at least I read that they are. They’re just in opposition to established norms, and beyond hypocritically dishonest. (I include the “beyond”, there, in hope of winning the acclamation I mentioned in line 2, above.)

    So, okay, then. “Technically legal” is the new bar to clear.

    Well, adding justices to the court is technically legal, too, and even beyond technically legal, since it’s been done multiple times in the past.

    People who want to keep norms should adhere to them. But, of course, the Republicans were and are well aware of what they’re buying. They just don’t want to pay the price, or permit anyone else to buy something the same way.

    So these are the rules we’re apparently playing by, now. You can go ahead and wring your hands about it, but the Republicans introduced a knife to a fistfight, and are denouncing Democrats for wondering aloud if they should respond in kind. And people making arguments like yours are carrying water for them.

    And, of course, that’s easy for you; if memory serves, you are Canadian. Our politics affect you, certainly, because we’re the 800-lb gorilla (for now), but, also, it won’t be your rights getting shredded by this court. By contrast, I’m a trans lesbian with pre-existing conditions looking after an elderly parent, citizen of no country but the United States, and with no option to leave. This is as consequential to me as a cancer diagnosis, and I mean that literally; I know what it’s like to receive one of those, and I genuinely fear for my health and life if things continue as they have gone in the last four years. So, if you wanted to have a fun dorm discussion about this, it’s well to remember that some people here don’t have the option of approaching this academically.

    Grace

  5. 5
    Corso says:

    To my knowledge, that maneuver was unheard-of, at least in living memory, which is probably a decent definition of a “norm”.

    I think it bears noting that to get a situation where a confirmation would not be heard, you need something of a perfect storm:

    1) You need a SCOTUS vacancy, and there’s only been 114 of those in US history.

    2) You need a senate that for whatever reason is unwilling to confirm your candidate. Which usually means a Senate that is not the same party as the president.

    3) You need a very specific clock: Something that can run out in a relatively quick timeframe. There being more nominees than confirmed Justices because of rejections, so the pool is obviously larger than the 114 confirmations. But there’s only been 26 nominations in the last year of a presidency in American history.

    Of those 26, 10 were confirmed. The other 16 were “postponed” (which is functionally what McConnell did), withdrew when it was obvious they wouldn’t be confirmed, or no action was taken (also functionally what McConnel did).

    To be clearer: 61% of nominations that happened in the last year of a presidency did not get a hearing.

    I don’t know if anyone had actually said the words out loud prior to McConnel, but the maneuver of not giving a nomination a confirmation hearing while running out the clock is relatively common. *Recent* examples are more rare. The closest one could get would be, Abe Fortas, who was nominated in January of 1969 (An election year), by Lyndon B Johnson, and his hearing was filibustered until October, when the nomination was withdrawn.

    “But Dean, that’s a full 10 years before you were born, I said living memory”

    Sure…. But that was also the last time a SCOTUS nominee was nominated in the last year of a president’s administration before Merrick Garland, so if you think that something not happening in 50-odd years means that it’s not normal, then Garland’s nomination was not normal.

    “Now, with fewer than eight WEEKS remaining in a presidency, with an election ongoing in which unprecedented numbers of people have already voted, many of them explicitly in response to this very situation, McConnell is taking every action necessary to get a presidential nominee appointed, in the face of widespread public opposition to the maneuver, and thereby disenfranchising people from their ability to “speak” to the issue by means of the election. To my knowledge, this maneuver is also unheard-of in living memory.”

    I think this has to be taken in two parts: The first is the idea that the election happening matters. It doesn’t. You don’t elect people for 3 years and 9 months, you elect them for four years. A president could, in theory, nominate someone after losing an election, and the senate could confirm them after collectively losing theirs. This would be no less legitimate than a process that happened a year previous to them losing.

    The second is the history: Of the 10 successful nominees nominated in the last year of a presidency, the average time from nomination to confirmation was 17 days. And it’s only 17 days because of Melville Fuller, who took almost 4 months, the average without him is 5. To your point, the last time that happened was 1893, But again, to my point, there hasn’t been a successful nomination in the last year of a presidency from any party in the last 100 years. But if the question is: Have any confirmations happened this quickly in recent memory? Sure. John Paul Stevens was confirmed in 18 days.

    In reality: It’s all about the political will of the senate to make the confirmation happen. There were multiple confirmations done the day after a nomination.

    And it bears note that most of the reason why nominations take so long is that we hold confirmation hearings, which are a relatively new invention, only two had been held prior to 1955. Before then, the senate just voted based on the nominees record. Hell, there was a nominee who was called to a confirmation hearing, he declined, and the senate still confirmed him.

    Regardless… My point is that this isn’t abnormal. Or if it is abnormal, it’s because SCOTUS nominees are so few and far between that it’s artificially abnormal, and damn near anything to do with the process doesn’t happen often.

    So these are the rules we’re apparently playing by, now. You can go ahead and wring your hands about it, but the Republicans introduced a knife to a fistfight, and are denouncing Democrats for wondering aloud if they should respond in kind. And people making arguments like yours are carrying water for them.

    I think you’re attempting a particularly lame moral equivalence; Despite the relative historical frequency of an off-party, drawn-out rejection or an in-party confirmation rush… Even if you want to say those things are unusual, or morally or ethically wrong… These things have happened before.

    The difference between Merrick Garland and Amy Barrett wasn’t that the Democrats were playing more fair, it was that the Democrats didn’t control the Senate, and they didn’t control the Senate because they didn’t win their elections. If the Democrats HAD the senate, they would have done *exactly* what the Republicans are doing now (and to be fair to you, in that case, Republicans would have been screaming bloody murder too). If you feel that what the Republicans are doing in 2020 is so awful and unusual, then you must have been absolutely relieved when the Democrats attempt to do exactly the same thing in 2016 failed.

    Right?

    Which brings me to the absurdity of this idea that Republicans in particular are these great destroyers of norms: They aren’t. I’ve given you the example, and you ignored it, but the nuclear option was probably the most Democracy-shaking thing to come out of my lifetime, and it came from Democrats. If confirming judges in an election year is bad, then the Democrats tried it four years ago. Adding four or five SCOTUS judges would permanently upset the balance of power between the judiciary and the legislature, (I say balance of power between the J and L because again… Eventually Republicans are going to form government.) and the Democrats who are talking about doing it.

    Outsider looking in time, because, yes, I’m Canadian. Republicans cheat. They cheat amazingly. But they cheat in ways that are traditional: They gerrymander, they suppress votes, they have amazing propagandists. Democrats find new and exciting ways to cheat: They used executive orders to legislate, they used rules of order to weaken the filibuster, and now they’re talking about destroying the judiciary. And every time the Democrats find a new and exciting way to cheat, the Republicans pick it up and do it better, and then the Democrats look on in horror and pretend that this is all those nasty Republican’s faults.

    Which is…. exhausting.

  6. 6
    Grace Annam says:

    I think this has to be taken in two parts: The first is the idea that the election happening matters. It doesn’t.

    Are you seriously taking McConnell’s reasoning, about which I have already given an opinion in this thread, and pretending to give it weight, possibly while attributing it to me?

    This isn’t a serious discussion, and I’m sorry I wasted time on it, today.

    Grace

  7. 7
    Mandolin says:

    Grace, I adore you.

  8. 8
    Görkem says:

    As usual Corso, a self-declared Biden supporter, is nonetheless here to let us know that, hey, these Republicans aren’t so bad, and we all just need to calm down and stop worrying so much about what they do when in power, because it turns out (according to Corso) that it actually doesn’t matter much.

  9. 9
    Corsi says:

    @6

    Grace, I’m attributing your own words to you. I quoted you. Did I misread it, or did you not say

    Now, with fewer than eight WEEKS remaining in a presidency, with an election ongoing in which unprecedented numbers of people have already voted, many of them explicitly in response to this very situation, McConnell is taking every action necessary to get a presidential nominee appointed, in the face of widespread public opposition to the maneuver, and thereby disenfranchising people from their ability to “speak” to the issue by means of the election.

    As if the November 3rd election was a factor in your “second punch” theory?

    To clarify: I think McConnell was wrong then and right now. I think I’ve been clear, but I think McConnell should have given Garland the hearing and rejected his confirmation. His demurring at the time just made what he’s doing now, which is correct, muddier than it ever had to be.

    Merrick Garland was never going to be a Justice, but the messaging was awful.

    @8

    Gorkem, I would vote Biden this time around and feel good about it. But I’m not a progressive by any stretch of the imagination. Especially here, where the community skews very deeply left, you’ll probably find me to your right on most issues.

  10. 10
    LTL FTC says:

    Counterpoint: many of the left’s Big victories in the half-century after WWII (perhaps most) came from countermajoritarian rulings from the Supreme Court. Time and again, SCOTUS has done what liberals/progressives failed to do at the ballot box. My gut feeling is that this provides short term, crucial victories, but is counterproductive in building the kind of nation and polity that can sustain progressive ideals without a web of precarious injunctions and rulings.

  11. 11
    Petar says:

    What the Republicans are doing is legal, and sits quite nicely with their core electorate. It is hypocritical, divisive, and what not. But they have the votes, and they will ram their choices down the throats of the rest of the voters, majority or not. That’s why they got behind a creepy crook like Trump.

    I am not talking about the lumpenproletariat, I am talking about the apparatchiks (It’s ain’t just Commies that got’em), Catholic priests, perfectly sane businessmen, etc. – people who went from “Never Trump!”, to voting for him, to still looking disgusted at him, but cheering business deregulation, removal of environmental protection, conservative judges, etc. I am talking about people with whom I actually work. Most of them are pro-immigration, and hate that part of his shtick, but console themselves with “It’s worth the price”, “He ain’t getting anywhere, anyway”, etc. Or maybe they just say that, and are secretly happy with making ‘undesirables’ suffer, I’m no mind reader.

    Such individuals are probably only one out every few Trump voters, but they are what made him more viable than Le Pen, not just by voting for him, but for giving him legitimacy.

    And he did well by them. That you can’t deny. The business and environmental deregulation alone will make trillions for some individuals, while the cost of cleanup will be born by the taxpayers. The Covid disaster has already widened the divide between the super rich and the rest of us. The conservative judges will decide plenty of important issues, especially as the Republicans start exploring more ways of trivializing the popular vote. Trump is a solid win for his side.

    Sure, in the worse case scenario, for Republicans, he will usher four years of Biden, which will be a minor nuisance. Biden would be a right winger in most countries, and Harris is on the right of him. He will spend four years sweeping up Trump droppings, patch some things up so the next Republican can break them good, and handily lose in 2024.

    As for Democrats, I do not want to even talk about them. Republicans are supposed to want to screw the plebs. I have trouble believing that Democrats are just incompetent, not deliberately self-sabotaging.

    Oh, I support them to the hilt at the national level, because Republicans are breaking stuff that will not be repaired in decades. But at the local level, I want to see people like Ocasio-Cortez, Brown, Baldwin, and even Sanders. Eventually, the Democratic party will have to start listening to them, or go the way of the Whig.

    And packing the Supreme Court? Horrible optics. What lies down that road? How about the 2040 President routinely pardoning those who murder sitting judges, and his Congress rubber-stamping his nominees? I’m sure it may turn out legal, with enough squinting.

  12. 12
    Görkem says:

    America is a very conservative country. Even Americans who identity as anti-conservatives often express views about taxation, identity, government service etc that would be considered distinctly conservative in the rest of the rich world. The Democratic party is only a reflection of this. So as much as I prefer Sanders’ or AOC’s policies to Biden’s or Harris’, I just don’t think it is realistic for them to ever be enacted on a national level.

  13. 13
    Ampersand says:

    “Ever” is a long time. I agree it won’t be happening in the immediate future, though.

  14. 14
    Kate says:

    @1

    “But Dean, what about Merrick Garland?”
    What about him? It’s not uncommon for SCOTUS nominations to not be confirmed, particularly when the nominating president is from a different party than the senate (See: Bork).

    @3

    I suppose I’d like for you to describe what it is you think the Republicans are doing that violates the norm. Because in my experience over the last few years “violates the norm” is just code for “Actually kind of normal, but I don’t like it.”

    The Republicans didn’t simply “not confirm” Garland. They refused to consider any Obama nominee out of hand before he had even named anyone. That is unprecedented.
    Bork was given a hearing, at which Democrats gave actual reasons for not wanting to confirm him – his radical views, followed by a vote in which six Republicans voted no with the majority of Democrats. Garland was denied a hearing and an up or down vote. He was also a centrist, specifically chosen by Obama as a conciliatory gesture.
    Reagan was able to name another nominee who was subsequently confirmed (Kennedy). No one questioned Reagan’s right to make the nomination.

    But I can give some very specific examples of Democrats recently changing legislative norms; The most recent and meaningful example being how Mitch McConnell uses the nuclear option wantonly today in large part due to how Harry Reid normalized it. That was in 2013.

    Harry Reid did not “normalize it”. He was forced to make a narrow exception for executive branch nominations and judicial appointments because Republicans were refusing to let 59 executive branch nominations and 17 judicial nominations go for an up or down vote.

  15. 15
    Corso says:

    @14

    The Republicans didn’t simply “not confirm” Garland. They refused to consider any Obama nominee out of hand before he had even named anyone. That is unprecedented.

    There have been 114 confirmations to SCOTUS, and 37 failed nominations, of which 16 weren’t given an up or down vote (although to be fair, one of those was because the nominee died.) Not only is a failure of the Senate to provide an up/down vote precedented, it represents almost 10% of SCOTUS history. What might be unprecedented is that McConnell said the words out loud, and I only say “might” because while I have no record of someone saying it, it would not surprise me if someone had.

    He was forced to make a narrow exception for executive branch nominations and judicial appointments because Republicans were refusing to let 59 executive branch nominations and 17 judicial nominations go for an up or down vote.

    “Forced” is a really interesting word in this context, mostly because it isn’t true. What it means, in context, is that the Republicans had enough votes to filibuster, and so they did. And Democrats, not wanting to have their nominations held up be the normal functions of Democracy, used an obscure procedural loophole to effectively dismantle the filibuster.

    Also, calling that “narrow” is semantic, the Democrats used it “narrowly” at that point, because that’s all they needed to do; They didn’t control the house at that point, so why expand the nuclear option to legislative votes when there wasn’t any legislation they wanted to actually vote on? There’s no doubt in my mind that if they saw opportunity to advance their policy, they would have pushed that button immediately. Meanwhile, there was no natural stopgap between that usage and the complete destruction of the filibuster, and so now we get the song and dance of “sure, we destroyed the filibuster, but the Republicans used what we did and ran with it”. Sure. Fine. That was my point when I said:

    Republicans cheat. They cheat amazingly. But they cheat in ways that are traditional: They gerrymander, they suppress votes, they have amazing propagandists. Democrats find new and exciting ways to cheat: They used executive orders to legislate, they used rules of order to weaken the filibuster, and now they’re talking about destroying the judiciary. And every time the Democrats find a new and exciting way to cheat, the Republicans pick it up and do it better, and then the Democrats look on in horror and pretend that this is all those nasty Republican’s faults.

  16. 16
    Corso says:

    I was thinking of this, and just as a followup.

    Some of the chatter I’m hearing is “The filibuster should be done away with anyway”. I understand that point of view. There are reasons that the system was designed the way it was, but the reality in American politics is that the Senators can vote 51/49 to confirm a position or pass legislation, but they need 60 votes to actually bring the legislation to a vote, and I’m not sure that reflects good governance in 2020.

    The problem is that we tend to have these discussions against some really polarizing backdrops, and it would be nice to have these conversations on the merits of the actual legislative changes, as opposed to how it will benefit either party in the next quarter. What I’d like to see is once the Democrats win the presidency and (probably) the Senate, to look at these rules outside of an emergency or an election cycle and prepare the groundwork for changes, and then make a constitutional amendment to pass them.

    Because most of my criticism towards Democrats isn’t in what they want to do, it’s how they go about doing it.

  17. 17
    Kate says:

    Wrecking mail sorting machines so large numbers of absentee ballots won’t arrive in time to be counted is not “traditional”. Asking foreign countries to dig up dirt on your political opponents is not “traditional”. Announcing that valid votes should stop being counted on election day is not “traditional”. The GOP is fighting Democrats in all sorts of non-traditional ways this year.
    However, attacking people going to the polls, and throwing out the votes of POC due to made-up technicalities are both traditional. Some “traditions” are evil. This is particularly true of the American traditions surrounding white supremacy, which are being upheld by the GOP and fought by Democrats.
    Calling the abuses of a group composed predominantly of white Christian men and their wives “traditional” and the defenses against those abuses by a group composed of a coalition of BIOPIC people, women, LGBTQ+ people, people with disabilities, non Christians…and other marginalized groups “new and exciting ways to cheat” is very traditional as well. That doesn’t make it right.
    And no one is proposing “destroying the judiciary”. We are proposing expanding it, which is not at all unprecedented and, given the increase in population since it has been expanded, arguably good policy as well.

  18. 18
    Kate says:

    Because most of my criticism towards Democrats isn’t in what they want to do, it’s how they go about doing it.

    There is never any correct way for marginalized people to fight for their rights. People thought the non-violent resistance of Martin Luther King Jr. was going to far at the time. People freaked the fuck out when Colin Kaepernick protested police violence by quietly taking a knee during the national anthem. There is never any right way with people like you.

  19. 19
    Celeste says:

    And no one is proposing “destroying the judiciary”. We are proposing expanding it, which is not at all unprecedented and, given the increase in population since it has been expanded, arguably good policy as well.

    Especially because Republicans have been ‘packing’ state courts for a long while.

    I can’t wait to hear how this is totally different.

    This is another example of why only a fool takes Republican arguments from principle or tradition seriously. They are always, always, always, in 100% of the cases, a mask for “we should be able to do as we please, and we hate it when you fight back.”

  20. 20
    Ampersand says:

    There have been 114 confirmations to SCOTUS, and 37 failed nominations, of which 16 weren’t given an up or down vote (although to be fair, one of those was because the nominee died.)

    We can be fairer than that. You’re including a bunch of cases that just aren’t comparable to Obama.

    You’re including, for instance, cases in which the president had not been elected (i.e., the previous president had died and the VP took over). But prior to the 25th amendment, it was genuinely ambiguous whether or not a VP who succeeded a dead President was actually President, with full powers, or just acting as President until the next President is elected. The constitution said the VP was “acting as President,” not that the VP became President.

    After the Civil War, Senators quietly overlooked this problem with the Constitution’s wording. But before the Civil War – so for Tyler and Fillmore’s SC nominations – people (including some Senators) argued that the power to nominate Justices was limited to people who had actually been elected President, and prior to the 25th amendment that was a reasonable argument. Obviously, no such question about if Obama was actually President existed.

    (The Senate in effect compromised in both cases: Tyler and Fillmore each ended up being allowed to fill one seat, but not two).

    You’re also including cases in which the nomination was made after the Presidential election had taken place, and in which the next President – someone different from the sitting President – had already been elected. Again, not the case for Obama.

    What cases, before Obama, can you name where the Senate refused to even hold a hearing, because they wanted to transfer the power to nominate Supreme Court justices from an elected president, to a not-yet-elected future president?

    As far as I know, you can’t, because there aren’t any.

    Excluding Presidents who either weren’t elected, or whose successor was already elected, there have been 103 nominations to the Supreme Court. In every one of those 103 cases, the nominating President was eventually able to fill the Supreme Court seat(s), even if they didn’t get to fill it with their first choice. In no case did the Senate decide to transfer the nominating power to an as-yet-unelected future President, as they did with Obama.

    (Source.)

  21. 21
    Ampersand says:

    What I’d like to see is once the Democrats win the presidency and (probably) the Senate, to look at these rules outside of an emergency or an election cycle and prepare the groundwork for changes, and then make a constitutional amendment to pass them.

    Why should the Democrats have to make a constitutional amendment to change rules that are neither in, nor required by, the Constitution? This seems unreasonable.

  22. 22
    Ampersand says:

    To everyone: I understand how critical and passionate this subject is – I really, REALLY understand. Nonetheless, please try to make comments “in a manner that shows respect even for folks we disagree with.” Thanks.

  23. 23
    Corso says:

    @19

    Well Celeste…. There are two things a person could say. First is that all five of your citations mentioned only two states where the Republicans successfully packed the courts: Arizona and Georgia, and I’m not sure what to make of it. See, both those states had courts that already leaned right and have voted Republican since the mid-90’s. It pays to remember that the explicit goal from Democrats federally is that SCOTUS might not rule the way they’d like, so they want to flip the balance of the court by packing in 45-55% more justices. I’m not sure that those situations are comparable.

    But they might be, they’re certainly related. So let’s continue as if they were;

    Second then, is: Is that good, or bad? Is it something we should support or is it not? Because barring a damn good reason for expanding or reducing the size of a court, I’m more than willing to say that we shouldn’t do it. So if you’d like for me to condemn the actions of the Arizona, Georgia, Iowa and Florida Republicans who attempted (or succeeded) at changing compositions, then sure: They should not have done that. It sets a bad precedent.

  24. 24
    Corso says:

    @20

    You’re including, for instance, cases in which the president had not been elected (i.e., the previous president had died and the VP took over). But prior to the 25th amendment, it was genuinely ambiguous whether or not a VP who succeeded a dead President was actually President, with full powers.

    Yes and no, but fair. You did note that the Senate compromised, and even the first VP who became president upon the death of a president was able to get a SCOTUS judge confirmed; Tyler, who became president after Harrison died of pneumonia nominated Samuel Nelson for SCOTUS on February 4th, 1845 and Nelson was confirmed on the 14th. (Also bears noting: February 14th was 20 days before the end of his presidency.)

    Regardless, my point is that the Senate, in making those compromises laid the question to rest: The issue was obviously a political one, not a legal one.

    You’re also including cases in which the nomination was made after the Presidential election had taken place, and in which the next President – someone different from the sitting President – had already been elected. Again, not the case for Obama.

    Also fair. But like I said before, a lame duck president could nominate a SCOTUS judge to a lame duck senate for confirmation and that confirmation would still be legitimate (like when John Adams nominated John Marshall two months before Jefferson took office, but after the election), because you elect representatives for four year terms, not three years and however long it takes to hold an election. Again, the fact that lame duck presidential nominations have been confirmed largely defines the issue as being political, rather than legal.

    What cases, before Obama, can you name where the Senate refused to even hold a hearing, because they wanted to transfer the power to nominate Supreme Court justices from an elected president, to a not-yet-elected future president? As far as I know, you can’t, because there aren’t any.

    You gave an example yourself with Tyler.

    https://en.wikipedia.org/wiki/John_Tyler#Judicial_appointments

    “However, the Senate successively voted against confirming John C. Spencer, Reuben Walworth, Edward King and John M. Read (Walworth was rejected three times, King rejected twice). One reason cited for the Senate’s actions was the hope that [Henry] Clay would fill the vacancies after winning the 1844 presidential election.”

    Your response to that will be “Yes, but we talked about this, this was before the 25th Amendment and people were unclear as to whether he could nominate people”. And my response will be, “Yes, but like I said, they were sure enough to confirm Nelson, and if you’re *really* not sure if someone has the power to do a thing, compromising by letting them do the thing half the time seems weird.”

    The revolving theme here is that whether or not a SCOTUS judge is confirmed, particularly since the turn of the century, is almost entirely explained by the political leaning of the senate. They have a myriad of ways to do things, and with only 151 nominations in the history of America, you could find differentiators for any of them.

    If the complaint is “Merrick Garland should have received a hearing”, then yes. Most of the people who didn’t get a hearing withdrew before the embarrassment of a rejection or were nominated a month or two before an election, neither Garland nor Obama were likely to withdraw the nomination, and there was more than enough time to hold the hearing.

    But that’s all he’d get. You know that, right? There was no universe where Garland actually got confirmed. You could say “Well, he was a perfectly qualified jurist, and he should have been confirmed.” But that’s not how it’s worked in quite a long time (See: Bork). you could say that Republicans were taking a heck of a chance, because if Hillary had won (like I kind of expected her to), her nominee could have been much more left-of center (and I completely agree with you about Garland’s leanings and Obamas reason for nominating him), but they were obviously willing to roll that dice. The only thing that would change, literally the only thing, would be the line on the Wikipedia list of rejected nominees would say “Rejected 54-46” instead of “No Action Taken”.

  25. 25
    Ampersand says:

    Second then, is: Is that good, or bad?

    It’s absolutely good. (At least with the SCOTUS, but also with Arizona and Georgia, if the situation there were similar. I’m not going to jump into a research hole about that, so I’m just talking about SCOTUS for the rest of this comment).

    Right now, a bit of good luck – like Trump winning while losing the popular vote (something that’s only happened a few times, although if nothing is reformed I expect it’ll happen more going forward), and then three seats opening up during his first term – is enough for a President, through his court nominees, to set the course of American laws and elections for the next two generations. This is undemocratic, and sets the stakes incredibly high. If none of the conservatives (who are relatively young and hearty, as SCOTUS members go) on the court happen to die with Democrats controlling both the White House and the Senate, it’s quite possible for Democrats to win most elections for decades to come without ever having a chance to reform the court. Which robs the majority of voters of the chance to rightly proportionally influence their government through elections.

    If and when justices die is determined by sheer luck, not by democracy.

    If winning the Presidency, the Senate, AND the House all at once is enough to reform the court – even without any Justices dying – that lowers the stakes. It makes the system more democratic. Having both the White House and both houses of congress is a very high bar to clear – but it’s not an impossible bar, and it’s a democracy bar, not a sheer luck bar. If this is the norm, it means that a fortunate run of deaths/retirements won’t mean that one party is locked out of influencing the courts for generations.

    And of course, the Republicans can also expand the Court, next time they control both houses of Congress and the Presidency. And that’s how it should work. If they can win that much, then they deserve a chance to govern, including a chance to influence law through their judicial picks.

    That’s the primary first reason I want the Democrats, if they win, to pack the court.

    Second reason:

    Right now, there’s a four-person majorityagreement, on the Supreme Court, for radically changing the interpretation of election laws to allow state legislatures to set rules with no possible checks or balances from the courts. That is not and has never been how laws in the US work, but four – maybe now five, depending on our new SCOTUS justice – want to do away with the check-and-balance system that is integral to the structure of US government, at least when it comes to election law. This would allow legislatures to get far worse on every level; far worse on voter suppression, far worse on gerrymandering, far worse on finding excuses not to count votes – and would greatly undermine the ability to hold fair elections in the US.

    Is that something that’s certain to happen? No. But it’s definitely a strong likelihood, if nothing changes. If the Democrats can avoid that by expanding the court – something that is entirely legal and constitutional – then they should.

    Third, as someone (Kate?) mentioned, there’s also the benefit that a larger Supreme Court could hear more cases and get more work done. And that’s even more true of some of the lower courts that haven’t been expanded in decades, even as the work load and the population have both grown. A lot of the reason court cases in the US can take years, which in some cases leads to really awful injustices, is that we simply don’t have enough judges to do the work.

  26. 26
    Chris says:

    Outsider looking in time, because, yes, I’m Canadian. Republicans cheat. They cheat amazingly. But they cheat in ways that are traditional: They gerrymander, they suppress votes, they have amazing propagandists. Democrats find new and exciting ways to cheat: They used executive orders to legislate, they used rules of order to weaken the filibuster, and now they’re talking about destroying the judiciary

    Bush issued more executive orders than Obama, and Trump has issued more than Obama did during his first term.

    The Republican party in my county is literally putting out fake ballot return boxes. They have said they will not stop doing this even after being told by the state of California that it is illegal. And this is all part and parcel of the GOP’s nationwide anti-voting stance.

  27. 27
    Chris says:

    But that’s all he’d get. You know that, right? There was no universe where Garland actually got confirmed. You could say “Well, he was a perfectly qualified jurist, and he should have been confirmed.” But that’s not how it’s worked in quite a long time (See: Bork).

    Bork was not a perfectly qualified jurist. He was instrumental to Nixon’s Saturday Night Massacre, and he opposed federal anti-segregation laws. There were good reasons to oppose him, which is why he was not confirmed. Casting this as a totally partisan vote, when 2 Democrats voted for him and 6 Republicans voted against, is simply revisionist history.

  28. 28
    Ampersand says:

    And my response will be, “Yes, but like I said, they were sure enough to confirm Nelson, and if you’re *really* not sure if someone has the power to do a thing, compromising by letting them do the thing half the time seems weird.”

    You’re pulling completely arbitrary rules out of nowhere. If two groups are fighting over what the law means, and both of the groups are influential, it’s perfectly normal if one group wins some of the time, and the other group wins another time, and there are people in the middle going “let’s split the difference.” And that’s especially true in the Senate (or house), which – unlike the courts – is not at all bound by precedent.

    Nothing about that magically makes it no longer a legal question; it’s just a legal question that, because of the split in opinion, tends to be decided by who has political power. Controversial legal questions are always political; that doesn’t mean that there’s no such thing as controversial legal questions.

    If the complaint is “Merrick Garland should have received a hearing”, then yes.

    No, the complaint is that the Senate decided to not even consider any nominations (it doesn’t matter that it was Garland) from a sitting, elected president, even though no new president had been elected. That had never happened before. And it was done by the Republicans.

    Your double-standards, throughout this thread, have been ridiculous. Anything the Republicans do that clearly breaks long-established norms, you make excuses for. Anything the Democrats do in response, you say is horrible and terrible (even if legal) because it breaks norms. You’re also happy to call for breaking long-established norms yourself (“the Democrats shouldn’t do that without amending the constitution!,”) as long as the norm-breaking in question disadvantages the Democrats.

    If the issue is “norms,” then your claim that only Democrats ever break norms is absolute nonsense.

    And yes, they wouldn’t have confirmed Garland regardless. But they would have been put through the public embarrassment of rejecting Garland… and, if they were determined, the one after that, and the one after that. That’s bad optics for a party, especially in the run-up to an important and close election. Such bad optics that it’s perfectly plausible that Republican Senators in close races would have been putting backroom pressure on McConnell to let a nominee through, or would have felt pressure themselves to vote against party. But even if McConnell had held the line and held his coalition, that very well could have meant they’d lose a neck-and-neck presidential race.

    Another way of saying that is: Rejecting nominee after nominee in extended public hearings creates accountability. And accountability is good.

  29. 29
    Celeste says:

    So if you’d like for me to condemn the actions of the Arizona, Georgia, Iowa and Florida Republicans who attempted (or succeeded) at changing compositions, then sure: They should not have done that. It sets a bad precedent.

    Setting aside for a moment whether it’s a good thing or a bad thing, my point is more that if you believe in maintaining norms, then the only possible way for this norm (“Don’t manipulate courts for partisan reasons,” which Republicans have been violating while Democrats obey) to be maintained is for Democrats to violate it as well, and to do so so egregiously that Republicans are in favor of a more ‘neutral’ solution to put an end to escalation.

    After all, one party cannot maintain norms on their own, and right now, Republicans have zero incentive to engage with the issue in good faith, since the status quo benefits them and disadvantages Democrats.

    But broadly, we’re either governed by norms, in which case there must be some negative consequences for the Republican violation of norms, or we’re governed by laws, in which case, expanding the supreme court is exactly as legal as refusing to hold hearings for Merrick Garland.

    You can’t have it both ways.

  30. 30
    Corso says:

    @25

    It’s absolutely good.

    I disagree, but I suppose I can appreciate the consistency, and I see where you’re coming from. I can respect that.

    @26

    Bush issued more executive orders than Obama, and Trump has issued more than Obama did during his first term.

    It wasn’t the number of executive orders…. Executive orders fulfill a necessary function in a Democracy, it was what he did with them. Obama infamously made his pen/phone comments because he was having a really hard time dealing with the House and Senate as him time in office progressed… He was putting forth policy that would have better come from the House and Senate because the House and Senate would have legitimized and legislated the policy, but he couldn’t get anything past Republicans obstructionism, so he did what he did. It wasn’t a great precedent. And as Trump reversed Obama’s EOs with the same kind of pen and phone Obama used to pass the EOs, there was a lot of noise from Democrats that Trump didn’t have the power to do the things he was doing…. Which would normally have been true, but it’s hard to argue you can’t undo with an EO what was done with an EO.

    @28

    You’re pulling completely arbitrary rules out of nowhere. If two groups are fighting over what the law means, and both of the groups are influential, it’s perfectly normal if one group wins some of the time, and the other group wins another time, and there are people in the middle going “let’s split the difference.” And that’s especially true in the Senate (or house), which – unlike the courts – is not at all bound by precedent.

    Your double-standards, throughout this thread, have been ridiculous. Anything the Republicans do that clearly breaks long-established norms, you make excuses for. Anything the Democrats do in response, you say is horrible and terrible (even if legal) because it breaks norms.

    I want to point out that during my explanation of historical happenings surrounding SCOTUS nominations, I’ve generally tried to avoid mentioning party affiliation. I’ve done that because this isn’t a Democrat/Republican thing, and frankly, I don’t know the party affiliations of the more obscure Presidents, and I can’t quote from memory the senate makeup outside of the last 16 or so years.

    But if you’re looking for consistency, the consistent theme with my points are:

    1) If it’s happened before, it’s not unprecedented.

    2) Almost everything in SCOTUS history can be explained by comparing the party affiliation of the nominating President and the party composition of the Senate.

    3) With only 151 examples of the nomination process in American history, you can probably find something to make each of them unique, but despite that, nothing in particular was unique about Garland, you only find “uniqueness” in adding multiple variables, and even then, not so much. I thought, for instance, that the amount of time between when Garland was nominated and his nomination failed might have been uniquely long, but it actually came in 8th place at 324 days, right behind Abe Fortas at 391.

    You’re also happy to call for breaking long-established norms yourself (“the Democrats shouldn’t do that without amending the constitution!,”)

    First off, that’s not what I said (I said “What I’d like to see”), Second… Are you saying that the abnormality of a constitutional amendment makes the amendments bad? Because I think we should take a giant step back and maybe get away from that. All of the amendments were by definition abnormal, but most of them were in fact really, really good. I particularly like the 6th, 8th, 13- 15th, 19th and 21st, which I suspect you generally agree with.

    Why I’d prefer to see it as an amendment is because Section 3 of the constitution allows the various branches of congress to create rules for themselves, but those rules are relatively vague or obscure, and not always adhered to. It would be nice if they were codified in a way that wasn’t as simple as a majority vote to overturn, but in order to do that, you would have to amend section 3. You can still have a whole lot of good come out with measures less than that, but they’d be a whole lot more fragile.

    If the issue is “norms,” then your claim that only Democrats ever break norms is absolute nonsense.

    I think this is an interpretation of; “Republicans cheat. They cheat amazingly. But they cheat in ways that are traditional […] Democrats find new and exciting ways to cheat.” I understand the reading, but I didn’t mean it in the way you took it. I think if I’d put “generally” in the front it would have been better understood because obviously Republicans break norms. Hell… Donald Trump is an anthropomorphized broken norm. But I do think that Democrats are more comfortable with breaking norms, I think it’s part of the schtick of being a progressive, and it’s not always necessarily a bad thing.

  31. 31
    Görkem says:

    I gotta say, Corso, your claims to be neutral really just seem like a device to make your advocacy of the Republican party platform and philosophy more palatable to people who don’t identify as Republicans.

  32. 32
    Corso says:

    I think what it is is that this audience generally skews to the left, and that means that what I find the need to respond to, things that I think go to far, or I think are unreasonable, or don’t seem to have the benefit of being true, will generally end up with me responding from the right of it.

    And to be fair to me, I’ve never claimed to be neutral, I’m not even sure political neutrality exists. I’ve said I’m a Canadian that generally votes Conservative. Perhaps the confusion was in pointing out that I was neither Democrat nor Republican? Regardless, Canadian Conservatives and Liberals are very similar beasts with very small policy differentiators that we like to pretend are worlds apart, but context is everything. We live relatively close to the center of the political spectrum, or perhaps both are to the left, depending on your point of view. On top of that, I spent five years abroad in Europe, and was able to see in real time what was different from the Canadian examples, and what was or was not effective. Because of that, I hold positions that either a Republican or a Democrat could hold, mostly correcting for what I see as the excesses of the other.

    That said, I am rooting for Biden here, not necessarily because I like Biden, but I want a return to normalcy, and Trump is not normal. His approach to international trade isn’t normal, his approach to foreign relations is not normal, his response to Covid was awful, and he constantly reminds me of President Camancho from Idiocracy. Despite my criticism of the Democratic Party, which I will defend, were I an American, I understand that realistically you either pull the lever for red or blue, because otherwise you might as well have stayed home, so there’s a weighing exercise. And it’s not even close.

    But not all bad things are the worst thing possible; Trump is bad enough on his own, for things that he actually does, that we don’t need to make things up or manufacture outrage to fill the gaps. And merely opposing bad things does not make something good; We should be able to walk and chew gum at the same time, and Trump’s badness doesn’t mitigate, in my opinion, the fact that some of the policy positions forwarded recently by Democrats do not make sense and/or are also bad.

    Perhaps this is too real for people in America, I have no idea what I’d be doing if I lived in a state. Maybe after the election, in which I both hope and believe Biden will win, we can have these discussions without people being quite as on edge. Because I really don’t like the idea of the alternative.

  33. 33
    Chris says:

    It wasn’t the number of executive orders…. Executive orders fulfill a necessary function in a Democracy, it was what he did with them. Obama infamously made his pen/phone comments because he was having a really hard time dealing with the House and Senate as him time in office progressed… He was putting forth policy that would have better come from the House and Senate because the House and Senate would have legitimized and legislated the policy, but he couldn’t get anything past Republicans obstructionism, so he did what he did. It wasn’t a great precedent. And as Trump reversed Obama’s EOs with the same kind of pen and phone Obama used to pass the EOs, there was a lot of noise from Democrats that Trump didn’t have the power to do the things he was doing…. Which would normally have been true, but it’s hard to argue you can’t undo with an EO what was done with an EO.

    Thank you for conceding that most of Obama’s EOs were in response to Republicans’ unprecedented, and norm-breaking, obstructionism.

    As for using EOs to “cheat,” you haven’t really shown that with Obama, especially as relates to the issue of election cheating. Suggesting that Trump merely used EOs to reverse previous Obama EOs is more revisionist history; Trump has notably used EOs to circumvent Congress, threaten private companies who don’t kiss his ass, and target critics, even going as far as threatening to defund areas of the country that did not vote for him. Using EOs to attempt to intimidate and silence dissent seems a lot more extreme than any Obama signed.

  34. 34
    Görkem says:

    Just to be clear, Corso, I am not an American either. So I don’t think that is what is preventing me from seeing things the way you do.

  35. 35
    RonF says:

    Grace:

    The question is simple: do we govern by norms, or do we permit anything which we can make an argument is legal?

    The norm is that in 26 previous cases when someone was nominated by the President to the Supreme Court in an election year there was only one exception to the practice that if the Senate majority was of the same party the nominee was confirmed but if it was not he wasn’t. That’s the norm, complaints about Sen. McConnell’s rhetoric notwithstanding.

    Now, with fewer than eight WEEKS remaining in a presidency, with an election ongoing in which unprecedented numbers of people have already voted, many of them explicitly in response to this very situation, McConnell is taking every action necessary to get a presidential nominee appointed, in the face of widespread public opposition to the maneuver, and thereby disenfranchising people from their ability to “speak” to the issue by means of the election. To my knowledge, this maneuver is also unheard-of in living memory.

    Then they should have waited until closer to election day to vote. They disenfranchised themselves. I’m all for absentee balloting, but turning Election Day into Election Month-And-A-Half is absurd and unnecessary.

    As far as any consideration to precedent regarding how close to the election Justice Barrett was confirmed, Pres. John Adams nominated and got a nominee confirmed after he was defeated for re-election (along with many other Federal judges). So it’s not unprecedented. As Justice Ruth Bader Ginsburg pointed out, a President does not cease being President after Election Day, and thus certainly not a month or two before it.

  36. 36
    RonF says:

    Thank you for conceding that most of Obama’s EOs were in response to Republicans’ unprecedented, and norm-breaking, obstructionism.

    Was it because the Congress was norm-breaking, or was it because Pres. Obama’s EOs were norm-breaking? As an example, ordering schools to permit children of one biological sex to use the bathrooms of the other biological sex. Would you say that’s norm-breaking? There seems to be a presumption here that everything that Obama did was within norms and thus the Congress was breaking norms and being obstructionist, rather than Obama was being an extremist who was breaking norms and Congress was properly exercising the check-and-balance function that they were elected to provide.

  37. 37
    Ampersand says:

    The norm is that in 26 previous cases when someone was nominated by the President to the Supreme Court in an election year there was only one exception to the practice that if the Senate majority was of the same party the nominee was confirmed but if it was not he wasn’t.

    Source, please?

    The “of the same party” stuff wasn’t what the GOP was saying four years ago.

    Also, haven’t at least three election-year SCOTUS vacancies been filled with different parties controlling the White House and Senate? (Justices Lamar, Fuller, and Kennedy.) The vote to confirm Kennedy was unanimous. (Source).

    Also, you’re including cases in which a president nominated someone, that nominee was either given a hearing and lost the vote, or the nominee withdrew before the hearing, and then the president nominated someone else who got a hearing and was confirmed. That’s very different from what happened in 2016, when the Republicans explicitly said they would not give any nominee a hearing.

  38. 38
    Ampersand says:

    Then they should have waited until closer to election day to vote. They disenfranchised themselves. I’m all for absentee balloting, but turning Election Day into Election Month-And-A-Half is absurd and unnecessary.

    I’m a little confused by how this is at all a response to the paragraph of Grace’s you quoted.

    Is the GOP trying to get early votes thrown out? I hadn’t know that (they’re trying to get many votes thrown out, but I haven’t heard of throwing out early votes in particular). What are you referring to here?

  39. 39
    Grace Annam says:

    Corso:

    Perhaps this is too real for people in America…

    Yeah, okay.

    RonF:

    So it’s not unprecedented. As Justice Ruth Bader Ginsburg pointed out, a President does not cease being President after Election Day, and thus certainly not a month or two before it.

    And I never said that was the case. Both you and Corso are arguing against an argument I haven’t made. Perhaps you could engage with the argument I did make, which at least one other person in this thread was able to see without difficulty. Or perhaps Corso could, because:

    RonF:

    …biological sex…biological sex…

    You’ve been warned about this language before, Ron, and I’m done giving warnings to you on this topic. I say this as a moderator: don’t post again in this thread.

    You can answer Amp’s questions in an open thread, if you want to, but if you continue to use offensive language there, you’ll be banned there, too.

    If anyone wants to argue with that moderation decision, find something productive to do with your time, or scream into a pillow. I’m out of patience on this point.

    Grace

  40. 40
    RonF says:

    I’m sorry – I must have missed the directive where the term “biological sex” was deemed too offensive to use. I’m dead serious, I have absolutely no recollection of that (although I do recall an extended discussion on how I was referencing non-citizens resident in the U.S.). Point me to it, please. Also, please tell me a term to substitute for it that you will accept.

  41. 41
    Grace Annam says:

    Ron:

    Point me to it, please.

    https://amptoons.com/blog/?p=21124

    https://amptoons.com/blog/?p=21079&cpage=1#comment-370476

    I can’t help but notice that I found these by using Google, restricting the site to amptoons, searching on “biological” and clicking a few times. It took about five minutes. But sure, hold still while I take hold of your fingers and poke the keyboard with them. Speaking of which:

    Also, please tell me a term to substitute for it that you will accept.

    Wow.

    “Trans children”. “Trans boys”. “Trans girls”. “Girls assigned male at birth”. “Boys assigned female at birth”.

    It’s a big, transphobic Internet, Ron. Run wild. But in this miniscule pocket of it, work harder at not curating a transphobic experience for participants here, or don’t darken the door.

    Grace

  42. 42
    RonF says:

    Hm. That was 4 years ago and I don’t seem to have replied to any of it. I ‘ve looked it over and I still don’t remember it. Let me review that when I have more time than at the moment (an unpainted ceiling awaits, alas).

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