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Justice Kennedy Retires, July 31.


124 replies to this topic

#1
Ms. Spam

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The Democrats and Mitch McConnell Freak Out!



#2
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Don't see how it changes until there's at least a bit more breathing room.  Until further notice, liberals are literally one vote at the Supreme Court away from effectively running the country permanently through the court's "I win" button.

 

I didn't vote for Trump, but these two court vacancies were, by far, the biggest enticement.  I knew that if Clinton won, that would effectively end any chance of conservative governance forever.

I started a separate thread and meant to post more in it and elaborate about Kennedy's possible replacement. With certain nominees that get through we could see Roe v. Wade overturned. I honestly think Hillary was a middle of the roader centrist so not uber liberal. If she had won her nominees would have passed as conservative simply by virtue of her not being Obama. I'll post this in that thread so if we want to talk about that it will be there.



#3
El Chalupacabra

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Kinda doesn't matter for the near future. Possibly even not until after the presidential election. The Dems won't approve whomever is put forward right away, just like the Repubs did under Obama.  Tit-for-tat.  



#4
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How are the Dems going to stop it? Unless the Republicans want to keep it as a campaign issue, it's going to be done before the midterms. Even if it isn't resolved before then, I wouldn't want to bet on the Democrats taking the Senate and obstructing anything.
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#5
El Chalupacabra

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How are the Dems going to stop it? Unless the Republicans want to keep it as a campaign issue, it's going to be done before the midterms. Even if it isn't resolved before then, I wouldn't want to bet on the Democrats taking the Senate and obstructing anything.

Assuming all republicans vote for the nominee, you have a point.  But sometimes they don't vote the way the party wants.  Correct me if I am wrong, but isn't the Senate 51 republicans to 47 democrats? 

 

As for obstructing,  both parties do it, and I would bet on it happening in this case (or at least an attempt to obstruct), regardless of how the midterm election goes.



#6
Fozzie

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A Supreme Court confirmation is almost guaranteed to go down on party lines. And they just need 51 votes to confirm someone, so as long as the Democrats don't take over, which is possible but not much more likely than Clinton winning in 2020, there's no way they actually can obstruct anything.

As long as Trump sticks with the list, his nominee is getting confirmed without any hiccups. The Democrats already tried to stop Gorsuch, and they're in an even weaker position for it.

#7
El Chalupacabra

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A Supreme Court confirmation is almost guaranteed to go down on party lines. And they just need 51 votes to confirm someone, so as long as the Democrats don't take over, which is possible but not much more likely than Clinton winning in 2020, there's no way they actually can obstruct anything.

As long as Trump sticks with the list, his nominee is getting confirmed without any hiccups. The Democrats already tried to stop Gorsuch, and they're in an even weaker position for it.

Like I said, if all 51 vote that way.  But some may not be available to vote.  John McCain, for example.   And there are 2 independents in the senate.  

 

I am not saying it won't go the way you describe, but it is not a cake walk, either.  Nor does it guarantee the dems won't try to obstruct.

 

Additionally, this is what politics has devolved to: tit-for-tat.  Not saying it is right.  Not saying I want to see it.  Just saying that is what is par for the course these days.



#8
Ms. Spam

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I think for me it's Mitch McConnell's stand on this now that just kind of grates. I think Obama's pick was a good one and he was against it and we got a conservative. 

 

I wish CM still posted because I think her list may have changed of potential ones. 

 

I think party lines have changed somewhat as the GOP couldn't even get a immigration reform bill through this month when forced. It needed 100 votes to pass. They couldn't get that. But the law's changed now for Court Nominees. 


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#9
Poe Dameron

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I started a separate thread and meant to post more in it and elaborate about Kennedy's possible replacement. With certain nominees that get through we could see Roe v. Wade overturned. I honestly think Hillary was a middle of the roader centrist so not uber liberal. If she had won her nominees would have passed as conservative simply by virtue of her not being Obama. I'll post this in that thread so if we want to talk about that it will be there.

Clinton's nominees would have voted in lock step with the majority on the big issues, same as Garland, same as any other liberal justice.  There is no such thing as a middle of the road liberal Supreme Court justice outside of the ones nominated by Republicans like O'Connor and Kennedy.  I just don't understand how anyone could think that a Democrat would ever appoint a centrist.  They haven't come close since White.

 

 

 

Kinda doesn't matter for the near future. Possibly even not until after the presidential election. The Dems won't approve whomever is put forward right away, just like the Repubs did under Obama.  Tit-for-tat.

 

Democrats simply don't have the votes and even if a miracle happened and a couple of Republicans peeled off, it would just create a crisis for Heitkamp and Manchin as they'd have to explain why they were obstructing Trump's Supreme Court nominee in a bright red state.  They'd instantly lose all cred as centrists.

 

But even that scenario isn't going to happen.  Trump is going to nominate someone that will have impeccable credentials and a bland history.  They'll do the usual dance in the Judiciary Committee and perform well.  Collins and Murkowski will announce their willingness to vote for the nominee and that will be the end of it.  The vote will happen in September to get them on the bench before the court's next term and there won't be any drama at all.

 

If this were five years ago, Democrats could use procedural hurdles to stall the nomination and could have given this some drama, but they themselves altered the filibuster rule on lower-court judges, and then wasted the last bit of ammo they had when they dared Republicans to kill it for Gorsuch.  If they still needed 50 votes to change the Senate rules, things might be a bit different today.  But they squandered their leverage and really they're just left shaking their fists impotently.



#10
El Chalupacabra

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Well, Fozzie and Poe, I guess we will have to wait and see how it plays out.  47 dems and 2 independents to 51 republicans (some of which may not participate in the vote for whatever reason) is pretty close to me.  I just don't see this as a slam dunk, and I don't see any guarantee the dems will be inclined to ratify whomever Trump picks speedily.  If I am wrong, I'm wrong.  But I am judging by how Congress, both republicans and democrats, act like a bunch of babies, and whenever one get's their way, the other side bides their time, and gets theirs at the first opportunity. 



#11
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We should come up with some sort of non-monetary bet.
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#12
Poe Dameron

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For the record, Democrats would totally gum up the works if they could.  I just don't see how they have any leverage to make it happen.


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#13
El Chalupacabra

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We should come up with some sort of non-monetary bet.

See, I'm not a gambler: there isn't a bet I placed that I didn't lose!  :eek:



#14
Fozzie

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How about this: if the first nominee isn't approved on the first vote, without any type of successful filibuster, the winner gets to pick an avatar for the loser and it stays up for one month.

#15
Ms. Spam

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They can't filibuster nominees any more. I think it happened when Gorsach got it. 


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#16
El Chalupacabra

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How about this: if the first nominee isn't approved on the first vote, without any type of successful filibuster, the winner gets to pick an avatar for the loser and it stays up for one month.

That sounds fun, but  let's verify what Spam says. I'd do it now, but I am short on time at the moment. 

 

Otherwise, I'm in!


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#17
Poe Dameron

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I'll verify it.  Democrats successfully filibustered Gorsuch before his confirmation vote so Republicans simply turned around and changed the Senate rules by nuking the filibuster out of existence for the Supreme Court on the spot before easily confirming him.

 

Source if so required.

 

It's why I said Democrats threw away all their leverage before.  They only have themselves to blame.  If they hadn't changed the rules five years ago to get a few lower court judges past a filibuster, there'd be a lot of drama today.  Heck, even if they'd just kept their powder dry on Gorsuch, perhaps they could have picked off Murkowski or Collins to refuse to change the rules and they could use that as a fig leaf for why they didn't vote for the nominee.  They wanted to respect the institution.

 

But Democrats made the dumb strategic error of forcing Republicans to nuke the filibuster on Gorsuch when there was no way any Republican was going to let Democrats veto a perfectly qualified nominee when it wouldn't even change the balance of the court.  It was an easy vote and now Democrats don't have any more tools with which to obstruct for more than a day or two.

 

The only way they can stop, or even delay the nominee is with Republican help.  And they're not likely to find it.  Collins has already signaled that she'll vote for someone if she thinks they're qualified, there was some hope that Flake might pull some shenanigans because of the import taxes, but he immediately said he wasn't ready to go nearly that far.  The only one left is Murkowski, and while she's felt free to buck the party since she won as a write-in several years ago, she'd end her career with her next election if she tried to pull this in a state as brightly red as Alaska where she's already lost one primary and would pick up a more seasoned challenger if she did it again.


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#18
Fozzie

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Yeah, that's what Poe and I have been talking about the whole time. The filibuster is gone. Needing 60 votes is gone. The only way any of it happens is if 2 Republicans vote no, which won't happen, or three don't show up or if McCain doesn't vote and one Republican votes no. And like I said, there's a better chance of Hillary winning in 2020 than that happening. It's too big of a deal. And even the anti-Trump Republicans are only really against his style and his stance on trade.
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#19
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Well, if things play out that way, then all I can say is the Dems did it to themselves.  Prime example of changing established procedures for your instant gratification, but not having the foresight that when your team isn't in charge anymore, the other side will do the same thing.  That was my biggest complaint about how Obama governed with his executive orders, as well.    Not only does it backfire sooner or later, but it causes such a schizoid way of running a country.  


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#20
Fozzie

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They bought the hype that they would always be in power. And they could have easily extended it by supporting a less divisive candidate. If Boden's son was still alive, we would be in a way different situation

#21
Poe Dameron

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Well, if things play out that way, then all I can say is the Dems did it to themselves.  Prime example of changing established procedures for your instant gratification, but not having the foresight that when your team isn't in charge anymore, the other side will do the same thing.  That was my biggest complaint about how Obama governed with his executive orders, as well.    Not only does it backfire sooner or later, but it causes such a schizoid way of running a country.  

For what it's worth, getting rid of the filibuster for nominees was a good thing in my opinion.  It was a practice only started during Bush 43's term by the Democrats when Democrats simultaneously used it on many of Bush's women and minority judicial picks to deny him the potential chance to pick from them for a later Supreme Court opening and, without a sense of irony, called the rest racist and sexist.

 

It should have been gotten rid of back then if not for a few Republican Senators (McCain as usual doing his self-aggrandizement) that got together and sacrificed a few nominees to get others across the line.  I recall Democrats complaining that Republicans were taking away the procedure from "Mr. Smith Goes to Washington", which was odd considering Senator Jeff Smith was using an old-fashioned filibuster where he had to actually stand there and talk to viscous false charges, but Democrats were using a procedural filibuster in because they wanted to make viscous false charges against Republican nominees.

 

Republicans lost power and played by the new rules Democrats had put in place.  Democrats didn't like that their own tactics were being used against them, so they did what Republicans should have done 10 years earlier.  I didn't cry about it, although I was annoyed that several vacancies went to Obama, including the ones Democrats unleashed the nuke over, because a few were busy preening to the press about "comity" of the Senate.

 

Anyway, the filibuster is a dysfunctional rule in general.  The part of me that prefers that legislation not be passed is the only reason that I wouldn't be happy to see it go in general.  But the presence of the filibuster was literally causing potentially good judicial candidates to refuse offers to the bench because they didn't want to deal with having a nonsense procedural delay that had to be politically justified by dragging their names through the mud.

 

The weird thing, though, is that Democrats had Republicans in a box.  Republicans never even considered using a filibuster on Democrat Supreme Court nominees, even when Sotomayor's racist/sexist "wise Latina" comments were uncovered which should have disqualified her immediately, but Democrats would have used it against a Republican nominee that even if he didn't have any dirt whatsoever (and in fact did with Gorsuch).  That's why they didn't change the rules for the Supreme Court five years ago, because they knew the rule was only their's to use.  Unless Republicans had a large majority to change the rules, it would have been unlikely that they would have been able to convince the moderates and institutionalists to go along with it.

 

By changing the rules first, they gave Republicans the green light to go ahead and abolish it completely for Supreme Court picks.



#22
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The general consensus seems to be that it's narrowing down to Brett Kavanaugh and Amy Coney Barrett.  Interestingly, neither of them were on Trump's list of potential candidates that he released in 2016 that he promised to pick from and were only added late last year.  Maybe he didn't like his second choices and wanted to keep searching?

 

Kavanaugh is the safe choice, many were very surprised that he and Paul Clement weren't on the original list, but Amy Coney Barrett seems to have the inside track.  She became something of a darling in conservative circles after Democrats botched her judiciary committee hearing and severely overreached in trying to attack her on Catholic beliefs, culminating in Feinstein criticizing her because "the dogma lives loudly within you".  So nominating her would not only be a way for Trump to stick it to Democrats, which he's fond of doing of course, but also would be instantly galvanizing his supporters for a fight in progress and put Democrats in a bit of a bind in how to attack her.

 

In many ways, passing through her Circuit Court nomination could end up inoculating her from similar attacks this time, forcing them to use more generic, less incendiary tactics.  It might also have a Clarence Thomas effecy on how she'd perform on the court.


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#23
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I think there's a change in nominees because I would not want that challenge. I bet a lot of names have been asked but they declined. 



#24
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I think there's a change in nominees because I would not want that challenge. I bet a lot of names have been asked but they declined. 

Naw, of the people rumored to be in the hunt last time, only Pryor and Sykes have dropped off.  Sykes likely because of her age and Pryor because he's too controversial.  I believe both would be happy to accept the position.

 

Bush had some trouble though.  Miguel Estrada turned down any consideration after his nomination to the DC Circuit was the first filibustered by Democrats.  Democrats needed to kill him because he was Latino and they didn't want Bush to nominate the first Latino judge.  Same deal with many women Bush tried to appoint as well.  It left Estrada very bitter.

 

When Trump won and Estrada was mentioned as a possible solicitor general he literally said he'd turn down any appointment that required him to be "civil to Chuck Schumer."

 

Alice Batchelder impressed the White House with her interview and probably would have gotten the nod over Harriet Miers at least, but she turned them down, partially because of a recusal issue she didn't want to fight about.



#25
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Something I found interesting is the conservative right is starting to skew  the first amendment to be used towards - I dunno how best to describe it - their agenda. While the first amendment has always been a historically democrat/liberal tool its shifting feet and being used more now to strike more judgement like in the gay cake baker request to make it more for the conservatives rulings. 





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