Red Mosquito

Green Habit wrote:What I just want to hear is a lot less of "Allowing/not allowing Obama to replace Scalia is a disgrace to the American system", and more of "Allowing/not allowing Obama to replace Scalia is in the best interest of what I believe is best for America".

Isn't what's best for America to go the Constitution and see who's supposed to fill vacancies on the Court?

digster wrote:

Green Habit wrote:What I just want to hear is a lot less of "Allowing/not allowing Obama to replace Scalia is a disgrace to the American system", and more of "Allowing/not allowing Obama to replace Scalia is in the best interest of what I believe is best for America".

The only problem is that though the motivations of Obama and the Democrats may be political, the fact is they're in the right. Obama's supposed to submit a nomination and the Senate votes to confirm or deny. I've actually been fairly stunned by how open conservatives on talk shows have been about their reasoning being that they don't agree with Obama, so they don't want him to name the replacement. To their credit (I guess?) many of them are not hiding their motivations.

That's what I'm getting at. Both reactions are politically legitimate, I just wish more people would be willing to admit it. Ideally, they'd also admit that their tactics would be reversed if the roles of power were also reversed, but one step at a time...

B wrote:

Green Habit wrote:What I just want to hear is a lot less of "Allowing/not allowing Obama to replace Scalia is a disgrace to the American system", and more of "Allowing/not allowing Obama to replace Scalia is in the best interest of what I believe is best for America".

Isn't what's best for America to go the Constitution and see who's supposed to fill vacancies on the Court?

Do you think it's best for America for the Supreme Court to be filled with justices ideologically similar to Scalia and Alito? That's what I'm getting at there. So long as the Democrats had some power to stop that from happening, I wouldn't be outraged at them in the slightest for using that power--just as I'm not outraged at Republicans for doing the same today.

Ideally that power is used to ensure less ideologically severe justices when the country is divided. This is dangerous

stip wrote:Ideally that power is used to ensure less ideologically severe justices when the country is divided. This is dangerous

Did part of this post get cut off? Not sure what you're getting at there.

the lame duck/refusal to consider a nomination

our constitutional system is collapsing under the twin pressures of oligarchy and parlimentary politics in a model not designed for it. this will only exacerbate the problem. the phrase constitutional crisis gets abused but this is a case where it does apply

stip wrote:our constitutional system is collapsing under the twin pressures of oligarchy and parlimentary politics in a model not designed for it. this will only exacerbate the problem. the phrase constitutional crisis gets abused but this is a case where it does apply

I don't see how letting the Supreme Court go one justice short for a year qualifies as a "constitutional crisis", especially when the Constitution itself doesn't specify the size of the Court to begin with. Ties aren't ideal, but they are manageable--and ironically there's one major case (Fisher v. UT) in which Scalia's death will actually eliminate the possibility of a tie. Both parties are making an educated and logical bet that they can get power of both the White House and the Senate, and know that answer within nine months--three of those months in which the Court isn't going to even be in session. Whether those bets are wise or not for their interests can certainly be debated.

Finally, as Chris mentioned earlier in this thread, lower courts have had vacancies going on much longer than the projected vacancy here, so if there's a constitutional crisis it started much earlier.

Green Habit wrote:

B wrote:

Green Habit wrote:What I just want to hear is a lot less of "Allowing/not allowing Obama to replace Scalia is a disgrace to the American system", and more of "Allowing/not allowing Obama to replace Scalia is in the best interest of what I believe is best for America".

Isn't what's best for America to go the Constitution and see who's supposed to fill vacancies on the Court?

Do you think it's best for America for the Supreme Court to be filled with justices ideologically similar to Scalia and Alito? That's what I'm getting at there. So long as the Democrats had some power to stop that from happening, I wouldn't be outraged at them in the slightest for using that power--just as I'm not outraged at Republicans for doing the same today.

I just get tired of having the country run by assholes who fight all day to make nothing happen.

B wrote:I just get tired of having the country run by assholes who fight all day to make nothing happen.

I'll try to remember this comment if/when the GOP ever gets control of all branches of government.

One of the following will happen:

Scenario A
Obama nominates a moderate-to-slightly-leftish (lives in the 21st century) candidate with impeccable credentials that will be tough to attempt to disqualify on merit. If the republicans dig-in to deny the appointment, for the next 9 months, they will suffer in the polls as they are accused of contributing to the Washington dysfunction that has been the en vogue thing to point out in election circles as "the problem".

Scenario B
Obama nominates a moderate-to-slightly-leftish (lives in the 21st century) candidate with impeccable credentials that will be tough to attempt to disqualify on merit. The candidate is also Asian-American. If the republicans dig-in to deny the appointment, for the next 9 months, they will suffer in the polls as they are accused of contributing to the Washington dysfunction that has been the en vogue thing to point out in election circles as "the problem". They will also be accused of being biased against Asian-Americans, an increasingly important swing voter category.

Green Habit wrote:

stip wrote:our constitutional system is collapsing under the twin pressures of oligarchy and parlimentary politics in a model not designed for it. this will only exacerbate the problem. the phrase constitutional crisis gets abused but this is a case where it does apply

I don't see how letting the Supreme Court go one justice short for a year qualifies as a "constitutional crisis", especially when the Constitution itself doesn't specify the size of the Court to begin with. Ties aren't ideal, but they are manageable--and ironically there's one major case (Fisher v. UT) in which Scalia's death will actually eliminate the possibility of a tie. Both parties are making an educated and logical bet that they can get power of both the White House and the Senate, and know that answer within nine months--three of those months in which the Court isn't going to even be in session. Whether those bets are wise or not for their interests can certainly be debated.

Finally, as Chris mentioned earlier in this thread, lower courts have had vacancies going on much longer than the projected vacancy here, so if there's a constitutional crisis it started much earlier.

It's not the court being vacant. It's the decision making that blocks the possibility of a nomination and the breakdown of functional process. Our system is not set up for checks to be used by a parliamentary minority to prevent the majority from governing. Again, if the Republicans chose to filibuster a controversial nomination, and if obama stood his ground, and no one was appointed, that is not a different story.

stip wrote:

Green Habit wrote:

stip wrote:our constitutional system is collapsing under the twin pressures of oligarchy and parlimentary politics in a model not designed for it. this will only exacerbate the problem. the phrase constitutional crisis gets abused but this is a case where it does apply

I don't see how letting the Supreme Court go one justice short for a year qualifies as a "constitutional crisis", especially when the Constitution itself doesn't specify the size of the Court to begin with. Ties aren't ideal, but they are manageable--and ironically there's one major case (Fisher v. UT) in which Scalia's death will actually eliminate the possibility of a tie. Both parties are making an educated and logical bet that they can get power of both the White House and the Senate, and know that answer within nine months--three of those months in which the Court isn't going to even be in session. Whether those bets are wise or not for their interests can certainly be debated.

Finally, as Chris mentioned earlier in this thread, lower courts have had vacancies going on much longer than the projected vacancy here, so if there's a constitutional crisis it started much earlier.

It's not the court being vacant. It's the decision making that blocks the possibility of a nomination and the breakdown of functional process. Our system is not set up for checks to be used by a parliamentary minority to prevent the majority from governing. Again, if the Republicans chose to filibuster a controversial nomination, and if obama stood his ground, and no one was appointed, that is not a different story.

What parliamentary majority is being stymied?

The problem is that systems with parliamentary majorities that refuse to cooperate in principle on basic process issues do not have the degrees of checks and balances that we do. The American political system can function with ideological parties and divided gov't. There will be flare ups, but we will be ok.

This SC nomination is a reflection of a refusal on the part of republicans to confer any legitimacy about the right to rule onto the other party. You can trace the history of this back to both parties but we are dealing with something fundamentally new based on its magnitude. This is NOT the same thing as dems under bush or republicans under Clinton. And it is dangerous.

Part of the problem is how the media reports on this. In the desire to appear impartial the last 7 years have been covered as a slightly more extreme version of politics as usual. The NY Times has a front page article about this this morning and even there the article trips over itself to avoid painting this as a problem localized in one party. It's not objectivity if you get it wrong.

Political scientists are coming around much faster on this then journalists, but no one has their understanding of politics informed by them.

I've reccomended this before but there are two very accessible congressional scholars (Mann and Orenstien) who have written about this. One is a democrat and the other a republican (they work for brookings and AEI, I think). Their 2006 book, the Broken Branch, is a good look at how Congress changed for the worst, with plenty of blame to go around. But they followe it up 4-5 years later with Its Even Worse Than It Looks, which explores the dangerous acceleration in recent years and makes the arguement that it is, in fact, the fault of Republicans followed by the call for the media to frame coverage this way.

Emily Bazelon nails one of the things that really irks me about the current SCOTUS makeup, and it's not likely to change in replacing Scalia.

http://www.nytimes.com/2016/02/15/magaz ... earth.html

stip wrote:This SC nomination is a reflection of a refusal on the part of republicans to confer any legitimacy about the right to rule onto the other party. You can trace the history of this back to both parties but we are dealing with something fundamentally new based on its magnitude.

Perhaps our point of disagreement is that I'm limiting my analysis to the filling of Scalia's seat. Replacing a SCOTUS justice is a huge deal, especially when the ideological balance could shift with it. As such, I think it's perfectly reasonable for both parties to do everything they can in this instance to reach a conclusion in their favor. Talking about the wider trend may be a subject for another time or thread, and one where we may reach some more agreement.

This may have been mentioned before, but something that really rubs me the wrong way is all of the criticism of the justices on the "right" and how they rarely stray from ideological positions. But when I look back at the cases settling major issues over the past decade or so, I see some instances where the right voting block does in fact break and joins the liberal wing. But with the exception of Breyer joining a concurring opinion about racial preferences a few years back, NEVER do I see that liberal block breaking ranks over anything. They vote lock-step no matter what.

By the way, the Journal had a piece of just how hypocritical certain members of Congress and the Senate are regarding filling the vacancy. This is Chuck Schumer in 2007 when talking about confirming a Bush nominee in the last 18 months of his presidency:

Chuck Schumer wrote:We should reverse the presumption of confirmation.

He went on to add:

Chuck Schumer wrote:The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.

The Wall Street Journal states that he went on to say that he would recommend to his Senate colleagues:

Chuck Schumer wrote:we should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances.

Yup.

Chris_H_2 wrote:By the way, the Journal had a piece of just how hypocritical certain members of Congress and the Senate are regarding filling the vacancy. This is Chuck Schumer in 2007 when talking about confirming a Bush nominee in the last 18 months of his presidency:

Chuck Schumer wrote:We should reverse the presumption of confirmation.

He went on to add:

Chuck Schumer wrote:The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.

The Wall Street Journal states that he went on to say that he would recommend to his Senate colleagues:

Chuck Schumer wrote:we should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances.

Yup.

Team Chris.

The question I still have, though, is does that even matter? Is it a surprise to anyone that Chuck Schumer, or any politician on the right or left, is going to change their position on this in a way that's politically advantageous? The only difference between 2007 and now is that what was a hypothetical in 2007 has actually happened. The Democrats and Republicans are both acting out of political expediency, but the Democrats have the added benefit of being correct.