The argument for a SCOTUS appointment at this time.

http://digitaledition.pilotonline.com/infinity/article_share.aspx?guid=7c3f1c6d-3744-474b-b125-1bfeb7050f7b

Essentially the opinion states that the decision is both legal and fair.

“Prerogative and preference” is the core argument for the appointment. That McConnell exercised his power in 2016 is moot because he did what the Senate rules allow. 

Fair is in the eyes of the partisans. The regime ran on many things: a Mexican paid for wall, law and order, the “best healthcare ever”, infrastructure, and anti Roe v Wade judges, redoing “horrible“ trade deals, economic boost from tax cuts. Maybe one success is enough to get votes.

The question I have is whether the Senate has too much power as outlined in the Constitution. The national legal framework allows Congress to set its own rules, so until such changes, probably ill advised, are codified by amendments, McConnell is acting legally. 

The Constitution was a compromise with both the electoral college and the Senate giving immense power to the sparsely populated states. Not a balance, but a huge advantage. And with the advice and consent clause, the power carries over to the judiciary with lifetime appointments. 

When we look at the tremendous struggle to end gerrymandering in VA we see the inherent difficulty of removing power even when abused. 

21 thoughts on “The argument for a SCOTUS appointment at this time.

  1. RE: “The question I have is whether the Senate has too much power as outlined in the Constitution.”

    In what sense does the Senate have “too much power”?

    If the Senate could enact legislation unilaterally, or cancel Executive orders at will, I could imagine it having an excess of power. But given how the Constitution has arranged matters, I can’t grasp the assertion.

    In fact, I’d be more inclined to worry that the 17th Amendment dissipated too much of the power the Framers originally intended the Senate to have.

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    1. “ If the Senate could enact legislation unilaterally…”

      It can kill legislation unilaterally. It can, and has, packed the judiciary with lifetime appointments of young ideologues. It also has to approve the makeup of the Executive Branch by the same advice and consent clause.

      So the Senate has a lot of power affecting all branches. And because of the 2 Senators from each state whether populated by citizens or corn, it detracts from “of the people…” intents of the Constitution.

      Add in the electoral system of presidential selection, the rural states have extraordinary power in all three branches.

      Liked by 2 people

      1. RE: “It can kill legislation unilaterally.”

        So can the House, and the president and — ultimately — the Supreme Court. So what?

        RE: “And because of the 2 Senators from each state whether populated by citizens or corn, it detracts from ‘of the people…’ intents of the Constitution.”

        I don’t see how. In fact, I’d like it better if Senators were appointed by the state legislators. That way, “we the people” in the form of the state governments would have direct representation at the federal level.

        RE: “Add in the electoral system of presidential selection, the rural states have extraordinary power in all three branches.”

        Would you rather they had no power at all?

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  2. This article is beating up a straw man – no one can deny that the Republicans have the legal power to force through a nominee of their choice right up until the clock strikes midnight on January 20th. But they should and will have to pay a political price for their actions in two ways.

    First, for the nominee they choose and second for the way they exercised their power.

    On the first, we will see. The leading candidate, Amy Barrett is clearly well-qualified and in spite of her nutty religious affiliations (People of Praise) has a record of respecting stare decisis and has said things along those lines about Roe vs Wade.

    On the second, whatever Ryan thinks, GOP hypocrisy is repellent. He characterizes failing to push through a nominee as “checking their beliefs at the door and bending to the will of the Senate’s elected minority.” That is not how they put it in the past. They justified their treatment of Garland as deferring to the voters. That democratic sentiment is now clearly inoperative. So be it.

    I find one claim about their power highly questionable. That the Senate failing to VOTE on their disapproval of Garland was in any way legitimate. In the future, such failure to act should be taken as consent and the appointee turn up for work. It has long been a principle in law that silence denotes consent.

    Arguments like this one leave out the fact that in spite of the legalities, it is the public’s perception of the legitimacy of its institutions that hold any government together. By reneging on the long-standing arrangement that the President can nominate whomever they choose so long as they have a high level of experience and competence, the GOP has turned the SCOTUS into just another legislative body and a corrupt and undemocratic one at that.

    Finally, all of Ryan’s argument about a party exercising its legal powers in accordance with their preferences will apply if – as they should – the new Democratic Congress decides to re-organize SCOTUS and increase its size and adds Merrick Garland and 3 or 5 others of their choosing. If you accept Ryan’s arguments in this article – Why not?

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    1. RE: “If you accept Ryan’s arguments in this article – Why not?”

      If the size of the court is to be the issue, I would prefer fewer, not more, justices. Seven, five or three would be my preference.

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      1. I will not try to pretend that a larger Court is “better.” If it happens, and I hope it will, it will be an appropriate use of Congress’s power response to the abuse of power by the Republicans when they failed to act on Garland one way or another.

        Democrats need to play “hardball” on every front since that is the way the GOP plays the game. No room for compromise or accommodation. Kind of a dumb stance for the Republicans who will never again enjoy majority support in this country. But there you have it. What goes around, comes around.

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      2. RE: “If it happens, and I hope it will, it will be an appropriate use of Congress’s power response to the abuse of power by the Republicans when they failed to act on Garland one way or another.”

        Congress playing “gotcha” games strikes me as a more fundamental abuse of power. I was happy with the Senate’s refusal to act on the Garland nomination. As a result, I felt that my interests were properly represented. I would want my interests to be represented — not ignored — on the question of stacking the court as well. Your approach is clearly undemocratic in that it would disenfranchise me and my concerns.

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          1. RE: “Your ‘concerns’ are heartfelt, deeply held and in the minority.”

            So what? With the status quo they have representation. I see no reason the change the Constitutional order.

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          2. It’s called the “Tyrranid of the Minority”

            I know you’ll call him a Democratic hack or some other disparaging remark, but the observation by David Axelrod seems accurate:

            “If @realDonaldTrump and @senatemajldr ram thru a replacement now, the SCOTUS will have a majority of justices appointed by presidents who finished 2d in the popular vote, confirmed by senate majorities who represented less than half of the country.
            A tyranny of the minority.”

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        1. Mr. Roberts, it is not a question of playing “gotcha.” That completely misses the point.

          If it is okay for the Republicans to abandon all precedent and understandings and exercise their “legal” powers to the fullest to shape the Court the way THEY want, then there is no reason for the Democrats to not do the same. One obvious way – which more Democrats are putting on the table – is to use the power of the Congress to re-shape the Court. It might be politically risky – as FDR found out – but GOP behavior has made it less risky and even more so when clearly partisan and/or religious decisions start to be the norm for SCOTUS.

          It is telling that you think it is wrong, disenfranchising and undemocratic for YOUR wishes and concerns to not be met, but perfectly okay for MY wishes and concerns (and those of a majority of the people ) to be ignored. That simply shows that you do not understand democracy where it is often the case that some people do not get everything they want.

          Liked by 2 people

          1. RE: “It is telling that you think it is wrong, disenfranchising and undemocratic for YOUR wishes and concerns to not be met, but perfectly okay for MY wishes and concerns (and those of a majority of the people ) to be ignored.”

            How are your wishes being ignored?

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          2. How are my wishes ignored?

            How are yours? LOL!

            But here is one. I wish that Merrick Garland were on the Supreme Court. I get it that my wish might not be met BUT AT THE VERY LEAST I wanted the Senate to give Merrick Garland public hearings and for the nomination to be given an up or down roll call vote. As a citizen I wish to know how my Senators decide on important matters.

            Liked by 1 person

    2. “… it is the public’s perception of the legitimacy of its institutions that hold any government together.”

      Therein lies the problem. Not since the 1960’s has the government been viewed as mostly doing the right thing. When we discovered the lies about the war, credibility crumbled. It did again with the next lies about war after 9/11.

      We are at “war” now, and still the government lied to us.

      And this is after we elected, almost by accident, a “disrupter” who would “set things straight“.

      Or to put it more succinctly, LBJ, Nixon, Bush and Trump lied and people died. Pols can BS the electorate on policy, taxes, religion, jobs, but life and death are deal breakers.

      IMHO

      Liked by 2 people

  3. I really don’t get why Democrats are so worried. All of Trump’s potential nominees are believers in interpreting the Constitution, and law, as written and not in making law from the bench.

    It’s not like any of them is going to outlaw gay marriage or enact any other social law change.

    Is it just that you feel you are being robbed of the chance to legislate from the bench yourselves?

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    1. “It’s not like any of them is going to outlaw gay marriage or enact any other social law change.”

      The records say otherwise. But your attempt to make us feel better about Trump getting a third appointment, while hollow, is appreciated. He should have only had 2, but while frustrating, it is legal.

      I said the other day that Biden had it right: Trump should wait until after the election and whoever wins gets the choice. the problem is McConnell’s deep felt feeling that a loss of the Oval Office AND his majority are absolutely in the cards and he wants to take no chances.

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    2. Actually, the more I think about it, the appointee is not a big deal to me. The Court often tames the wild side of justices…in many cases.

      Same with the presidency…in many cases.

      Liked by 1 person

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