Oh, the regrets

[MajGenl.Meade]

[Lord Jim]

[MajGenl.Meade]

[Econoline]

No, the Senate’s Supreme Court Blockade Has Never Happened in American History

Senate Republicans announced today that they would refuse to consider any candidate nominated by President Obama for the Supreme Court. The Constitution gives the Senate the right to offer advice and consent on Court nominees. The two bodies have frequently quarreled over just how much power each is entitled over a nomination. Sometimes, senators have granted presidents wide latitude. At other times, they have insisted on forcing the president to nominate a jurist with mainstream views. But never before in American history has the Senate simply refused to let the president nominate anybody at all simply because it was an election year.

One can defend the moral or procedural legitimacy of the Republican escalation. But few Republicans or conservative intellectuals have done so. Instead they have asserted that they are merely following historical precedent. This is demonstrably false.

Republicans formulated their no-nomination position in real time, literally within moments of Scalia’s death, and hastily backfilled in justifications only afterward. The first defense, offered up on the fly by Ted Cruz and Marco Rubio at the Republican presidential debate that happened to take place that night, relied on “80 years of precedent” of presidents abstaining from nominating anybody to the Court in an election year. This precedent has turned out to be a complete fiction. Presidents have nominated, and Senates have confirmed, numerous justices to the Court, as law professor Amy Howe pointed out. The Senate did reject Abe Fortas’s elevation to chief justice in 1968, but it did so out of opposition to Fortas’s allegedly improper ties to the administration, not out of a principled rejection of President Johnson’s right to alter the Court in an election year.

The initial insistence that the Senate traditionally blocks any election-year appointments has fallen by the wayside for lack of any supporting evidence. Instead Republicans have fallen back to insisting that Democrats have advocated blocking Court nominees in an election year. It’s worth noting that evidence that members of a party have advocated something is far from saying that it’s a routine use of senatorial power; one can find examples of, say, Republicans advocating impeachment of President Obama merely because they disagree with his policies, but this would not make it routine for a future Democratic Congress to follow through on what had been loose talk. But even this far weaker bit of evidence turns out, on closer inspection, to have been trumped up.

The first alleged example of a Democrat advocating a full election-year blockade is a widely disseminated partial quote by Senator Charles Schumer from 2007 — “we should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances.” The coverage of Schumer’s remarks has usually excerpted the second, and sometimes the first, sentence. But the third sentence, transcribed by Josh Marshall, changes the context completely:

• “We cannot afford to see Justice Stevens replaced by another Roberts or Justice Ginsburg replaced by another Alito. Given the track of this President and the experience of obfuscation at hearings, with respect to the Supreme Court at least, I will recommend to my colleagues that we should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances. They must prove by actions not words that they are in the mainstream rather than we have to prove that they are not.”

Schumer's clear point was that Bush’s previous two nominees had misleadingly presented themselves to the Senate as moderates who would respect precedent, and then gone on to demonstrate judicial activist tendencies. Schumer’s proposed solution was not to stop any Bush nominee, but to require evidence of their moderation in their judicial record, not merely in promises they would make. One could believe Schumer was demanding too much deference for the Senate. But he was not arguing that the Senate should refuse to consider any nomination at all.

An especially comic example of the mischaracterization of Schumer’s position comes from Charles Krauthammer, who informs his readers that Schumer “publicly opposed filling any Supreme Court vacancy until Bush left office. ('Except in extraordinary circumstances.' None such arose. Surprise!).” The last line is supposed to be a dagger revealing Schumer’s hypocrisy. But the circumstances did not arise because there was no Supreme Court vacancy at all. Schumer’s remarks, which did not say what Krauthammer claims they said, were completely hypothetical.

A second example of Democrats allegedly advocating the current Republican position comes from recently unearthed 1992 remarks by Joe Biden, then a senator. But Biden was not advocating a blockade of any nomination by then-president George Bush. He was insisting that Bush compromise ideologically. “I believe that so long as the public continues to split its confidence between the branches, compromise is the responsible course both for the White House and for the Senate,” Biden said. “Therefore I stand by my position, Mr. President, if the President consults and cooperates with the Senate or moderates his selections absent consultation, then his nominees may enjoy my support as did Justices Kennedy and Souter.”

It is certainly true that Biden, like Schumer, was demanding broader latitude for the Senate. Both these remarks are within the historic tradition of senators tussling over how much say their chamber should have in the ideology of a new justice. But neither of them advocated flat-out blocking the president from any nomination, however moderate or well-qualified.

And maybe the old system, in which social norms dictate that the Senate allow the president to put his ideological imprint on the Court, is simply untenable in a polarized age. Maybe that system was bound to perish. (That’s the case I made.) And maybe the Democrats would have wound up becoming the party to kill that old system if they found themselves in the position Republicans currently occupy. But the clear fact is that they didn’t kill that system and they didn’t create the new one that is taking its place. The current Senate Republicans did.

This sentence bears repeating: “It’s worth noting that evidence that members of a party have advocated something is far from saying that it’s a routine use of senatorial power; one can find examples of, say, Republicans advocating impeachment of President Obama merely because they disagree with his policies, but this would not make it routine for a future Democratic Congress to follow through on what had been loose talk.”




ETA: I notice that Long Runs's article on Biden's remarks didn't quote these two sentences:

• “I believe that so long as the public continues to split its confidence between the branches, compromise is the responsible course both for the White House and for the Senate,” Biden said. “Therefore I stand by my position, Mr. President, if the President consults and cooperates with the Senate or moderates his selections absent consultation, then his nominees may enjoy my support as did Justices Kennedy and Souter.”

Nowhere near what the Republicans are now doing.

[Lord Jim]

what had been loose talk

Yeah, "loose talk" from the then Chairman Of The Senate Judiciary Committee...

[Econoline]

Yeah, “loose talk”...like, “compromise is the responsible course both for the White House and for the Senate.”

[Long Run]

Biden was not just "a senator", he was chair of the Judiciary Committee and could block any judicial appointment on his own, which he did numerous times:

In 1992, then-Senate Judiciary Committee chairman Joe Biden launched a preemptive attack on any nominee President George H.W. Bush named to the Supreme Court, warning that if Bush tapped someone, Biden’s committee “should seriously consider not scheduling confirmation hearings on the nomination . . . until after the political campaign season is over.”

While Biden did not get the chance to kill a Supreme Court nomination that year, he did kill the nomination of a future chief justice of the Supreme Court — John G. Roberts Jr.

On Jan. 27, 1992, President Bush nominated Roberts to serve on the U.S. Court of Appeals for the District of Columbia Circuit. Roberts was immensely qualified for the job. He had served since 1989 as principal deputy solicitor general of the United States, arguing 39 cases before the Supreme Court, making him one of the country’s most experienced Supreme Court litigators.

But his nomination to the federal bench was dead on arrival at Biden’s Senate Judiciary Committee. Biden refused to even hold a hearing on Roberts’s nomination, much less a vote in committee or on the Senate floor. Roberts’s nomination died in committee and was withdrawn on Oct. 8, 1992. It was only about a decade later that he was re-nominated to the federal bench by President George W. Bush — and we all know the rest of the story.

Roberts was not alone in being denied a hearing or a vote by Biden. According to a report by the Congressional Research Service (CRS), in 1992 Biden killed the nominations of 32 Bush appointees to the federal bench without giving them so much as a hearing. And that does not count an additional 20 nominations for the federal bench where Biden did not hold hearings that year, which CRS excluded from its count because they reached the Senate “within approximately [four] months before it adjourned.”

So none were cases in which time simply ran out. There was plenty of time to consider the nominations. But Biden refused. Why? According to an article in Texas Lawyer magazine, cited in the CRS report, some of the “nominees reportedly fell victim to presidential election year politics, as Democrats hoped to preserve vacancies in expectation that their presidential candidate would win election.”

That’s not all. In 1988, then-Chairman Biden also killed the nominations of nine candidates for the federal bench appointed by President Ronald Reagan without so much as a hearing. The New York Times reported at the time that “Democrats were determined to bury” some of the nominations because, as one liberal lobbyist told the paper, “the appellate seats were too precious to for us to give up” in a presidential election year.

Biden’s defenders claim that he made his 1992 remarks about killing a Supreme Court nominee in June of an election year, not February. But some of the nominees Biden killed that election year had been nominated as early as January 1991 — 17 months before the presidential election. And some of the nominees he killed in 1998 had been nominated as early as February 1987 — 16 months before voters went to the polls to choose a new president.

Biden’s record of election-year judicial obstruction came to light in 1997, when he tried to force then-Senate Foreign Relations Committee Chairman Jesse Helms to hold a hearing on the nomination of Massachusetts Gov. William Weld to be U.S. ambassador to Mexico (I was on Helms’s committee staff at the time). When Helms declared Weld’s nomination dead on arrival, Biden and other committee members forced Helms to convene a committee meeting, which they hoped would take up Weld’s nomination. Instead, Helms turned the meeting into a lecture on the “History of Presidential Nominees Not Receiving Confirmation Hearings.” He presented 10 pages of charts prepared by CRS detailing 154 presidential nominations during the previous decade that had been killed without a hearing — including dozens of judicial nominations that Biden had killed.

When challenged by Helms on his record, Biden explained that the nominees in his case were different than Weld’s, because they were nominated in an election year. “When I was chairman of the Judiciary Committee,” he admitted to Helms, “there were a number of judges who were left at the gate who did not in an election year get through.”

His point was that this was normal Senate practice — and he is right. Both parties have a history of killing judicial nominations without a hearing in an election year, particularly in cases where the nomination would shift the balance of the court. The CRS report notes that in 1995 and 1996, when Republicans controlled the Senate, they killed 14 of President Bill Clinton’s nominees to the federal bench without a hearing.

The bottom line is that what Republicans are doing today is far from unprecedented. To the contrary, it is the norm. There is a graveyard filled with judicial appointments killed without a hearing by both Republicans and Democrats in an election year.

Just ask John Roberts.

https://www.washingtonpost.com/opinions ... story.html

[BoSoxGal]

Or when he admits his failure to develop a policy to address the explosion in able-bodied people permanently dropping out of the workforce, food stamp and SSI recipients, and people sleeping in doorways, tents and under bridges (which I believe will be our memory of this sad mini-era).

Bush put those people in the doorways, tents and under bridges - and if you look further back to roots, so did Clinton via NAFTA.

Look at the economic stats from 2008 and the same stats for today; Obama has does a very decent job digging us out of a profoundly deep economic depression - 'great recession' my ass.

I'm disappointed nobody from Wall Street has gone to jail (aside from Madoff), but there is no disputing the recovery that has occurred.

Income inequality still exists and things are not what they should be because we need Glass-Steagall reenacted, we need higher taxes on high incomes, on Wall Street speculation, on corporations who currently hide vast amounts of profits off-shore. Yes, all those things need addressing - but they are all things Obama supports, but would never have gotten passed in the face of this obstructionist, do-nothing racist Congress - yes, it's the Republicans I'm talking about.

What total BS kool-aid you folks drink.

[Big RR]

Well BSG, I appreciate what Obama is up against, but except for some executive orders (which is a very dangerous precedent for anyone in the oval office IMHO, a president should not rule unilaterally, even if he's frustrated) he has not really done all that much to address any of the gridlock. He has a pretty good bully pulpit from which he can try and get the people behind him, but he doesn't use it. He's has been a senator and presumably knows how things work in Congress, but he hasn't really used (or even attempted to use) that knowledge to reach accords. Sure, the republicans are to blame, but so is the white house and the dems in congress who appear to have given up; indeed, it appears that Obama thinks such deal making is beneath him. the presidency is a tough job, but it is the job he wanted and he has not done a particularly good job.

As for the recovery--if you're a wall street trader, possibly; but many have just given up seeking any meaningful employment not because they're lazy, but because there's nothing for them. Obama trumpeted a "Recovery", but this isn't the recovery he promised, it's the one that happened and left many of his supporters behind (while pumping money into the pockets of republican supporters). Throwing up your hands and saying nothing can be done is pretty useless; we all should demand more from our elected officials. But the party faithful dare not criticize their own, and so we get little to nothing. And FWIW, that's the government we deserve.

[oldr_n_wsr]

we need higher taxes on high incomes

From what I read, the top 1% pay 45% of the federal income taxes and over 45% of the working population pay no federal income taxes.

[Big RR]

Perhaps, but then they make about 22% of the adjusted gross income (and enjoy some adjustments many of us don't), so it's a lot closer than the 1% figure makes it seem (and the figure I recall for their share of the taxes is more around 38%). As I recall, the top 25% make about 68% of the income and pay 90% of the taxes.

And that's just federal income tax, when we add in the other federal taxes (especially social security and medicare), even those who pay no income tax pay about 14% of their income (when employer contributions are taken into account), while those in the 1% don't pay anything approaching this figure.

[Long Run]

Look at the economic stats from 2008 and the same stats for today; Obama has does a very decent job digging us out of a profoundly deep economic depression - 'great recession' my ass.* * *

What total BS kool-aid you folks drink.

With all due respect, liberals who trot out the 2008-to-today stats are the ones buying the party line. This is the worst recovery from a recession in history. What has our economy done when its been in recession -- it recovers and usually very strongly. Outside of continuing the Bush-initiated bailouts (necessary but distasteful), I don't know of anything he did to improve the economy and can identify many policies that dampen economic activity. Obama will be the only president to never have a year where GDP grew 3% or more. If the employment rate were the same today as it was in 2007, unemployment would still be over 9%, etc. While leftie bloggers may throw out the 2008 tripe and say "good job Mr. President", anyone who knows at least a little about economics understands this is no record to be proud of -- which is why the administration rarely pats itself on the back (and they're not shy about taking credit).

That said, he is not solely responsible for the poor recovery, but he has earned his share of the blame.

[Econoline]

The U.S. financial markets, and the high-earners (especially the very highest of the high-earners) have done *VERY* well during this recovery. Which pretty much refutes everything the Republicans always say about trickle-down economics and more money for the "job creators".

[Econoline]

[Long Run]

The U.S. financial markets, and the high-earners (especially the very highest of the high-earners) have done *VERY* well during this recovery. Which pretty much refutes everything the Republicans always say about trickle-down economics and more money for the "job creators"

[Long Run]

And Econo, I don't know what that left-wing blogosphere graphic has to do with anything, but (1) it is an outdated piece of tripe from Senator Sleazeball Reid's office from 2013 (one of those things that make the liberal social media rounds from time to time, kind of like the 2008 to present economic comparisons -- but hey, conservatives have the same kind of B.S. they send around), (b) it was completely misleading when created and "fixed", and (iii) the number of Obama appointments actually blocked was 8 at the time, which included all executive appointments, not just judges.

[Burning Petard]

Yes regrets. We have a few. The Republican Senators stand firmly on principle and demand that appointment to the Board of Supremes not be even considered until after this election cycle, when the voters have spoken.

What are they gonna do if the voters have spoken and it is a Democrat sitting until 2021 in the oval office? Does anybody think they will then support or even slightly modify, their tune toward judicial appointments? We could easily end up with a seven member Supreme Court before the next presidential election cycle is over.

By the way, just when does this election cycle thing begin?

Snailgate

[RayThom]

... By the way, just when does this election cycle thing begin?
Snailgate

I'm pretty sure it begins again on Saturday, January 21, 2017.

[Econoline]

...at which point the Republicans will announce that their highest priority is making Hillary (or Bernie) a one-term President, and that they won't consider any Supreme Court nominees because there will be a new President in 2020...

[Long Run]

Yes regrets. We have a few. The Republican Senators stand firmly on principle and demand that appointment to the Board of Supremes not be even considered until after this election cycle, when the voters have spoken.

Obviously, they are standing on political convenience, just as their Democratic predecessors have done. It is worthwhile, though, to point out the ridiculous hypocrisy of the Dems trying to take the high road in this, especially Crazy Uncle Joe.