A Time for Change
With the announced retirement of Supreme Court Justice Anthony Kennedy, Donald Trump will get to appoint a second justice to our nation's highest court. The problem is, this should only be his first opportunity to nominate someone to the Supreme Court.
Senate Majority Leader Mitch McConnell prevented the nomination of Merrick Garland to the court by President Obama. When Donald Trump nominated Neil Gorsuch to the Supreme Court, the Democrats weren't able to use the filibuster to obstruct the nomination. That's because they eliminated the filibuster by invoking the "nuclear option" in 2013 under the leadership of Senator Harry Reid; who was Senate Majority Leader at the time. The Republicans followed suit and expanded that option to cover Supreme Court appointments. While there is no guarantee that the Republicans wouldn't have done this themselves to facilitate the Gorsuch nomination, the fact that the Democrats had done it first made it easier to do.
What Senator McConnell did in obstructing the nomination of Merrick Garland was wrong. Unconscionable. A severe dereliction of his duty as a senator. I wrote about this back in 2016. Senator McConnell gave a speech on the Senate floor at the time. This is an extract:
The American people may well elect a president who decides to nominate Judge Garland for Senate consideration. The next president may also nominate somebody very different. Either way, our view is this: Give the people a voice in filling this vacancy."
The people had their voice heard. They had elected the president and the senators who would fulfill their Constitutional role to "advise and consent." The decision to stop a nomination of a president when he or she is a true lame-duck, after their replacement has been elected has some merit. It has no merit when the president still has over 300 days left in office.
Now Democrats are saying that Senator McConnell should wait until after the mid-term elections to give that same voice to the people. It was wrong in 2016 and it would be wrong now. Further, it isn't a true equivalency. If we were electing a president, it would be a true equivalency. Since we aren't, it is a false equivalency. If you view the role of the Senate as being to advise and consent, as articulated in Federalist Paper #76.
IMO, the role of the Senate is to advise and consent regarding the qualifications of the nominee. Not to make the nomination into a partisan issue, where ideology rather than qualifications determine the suitability of the nominee.
But there is no way to separate ideology from this process. Why was the nominate of Robert Bork to the Supreme Court rejected on a vote of 42-58 that was almost entirely partisan in nature. It wasn't his lack of qualification for the post that caused 52 Democrats and 6 Republicans to vote against him. It was his stated opposition to the decision in Roe v Wade that was primarily responsible for the failure of his nomination. How ironic is it that whoever is nominated by Donald Trump will probably cast the deciding vote in a future case that will overturn that landmark decision. It is also ironic that when Richard Nixon nominated Harry Blackmun to the Supreme Court, he was considered a conservative jurist, but he ultimately became one of the most liberal justices on the court; and he authored the majority opinion in Roe v Wade.
* * *
What I am hearing are the primary concerns regarding the nomination and confirmation of the replacement for Justice Kennedy are:
Roe v Wade
Equal rights for the LGBTQ community
Affirmative Action
Civil Rights
All of these are valid concerns. But there is a more specific concern in the area of civil rights and that is the issue of voting. I suspect that the Voting Rights Act is in jeopardy. I suspect that it will be easier for state governments to engage in partisan-gerrymandering even more than they do now.
Pennsylvania has 18 seats in the House. Two of them are currently vacant. Ten are held by Republicans and six by Democrats. The governor of the state is a Democrat but Republicans hold the majority in both houses of the state's bicameral legislature. We are two years away from another census and that will result in reapportionment of the 435 House seats, and the redrawing of districts afterward.
What do we do? Engaging in a war on civility won't help the Democratic party gain control of either the House or the Senate. Is there a strategy that the Democratic minority in the U.S. Senate can use to stop the next nomination from Trump? Yes, but it is risky. It was laid out in a piece written by Gregory Koger, a political scientist with a Ph.D. from UCLA who is an expert in filibustering and obstructionism.
Article One, Section Five, Clause One of the U.S. Constitution says:
"Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide."
There are 51 Republicans currently in the Senate. Senator John McCain is at home on extended leave. The Democratic minority could use quorum calls to demonstrate that the Senate doesn't have a quorum and prevent the Senate from doing business.
Professor Koger points out four pieces of legislation that Senator McConnell is preventing from being brought to the floor for discussion. If the Democrats were to use those four bills as justification for using the quorum call strategy, rather than contesting the nomination of whoever Trump sends to the Hill to fill Justice Kennedy's seat, it could cause the Senate to grind to a halt. Preventing consideration of the nomination to the Supreme Court to be delayed. Could it be delayed until after the November elections? Who knows.
Senate Majority Leader Mitch McConnell prevented the nomination of Merrick Garland to the court by President Obama. When Donald Trump nominated Neil Gorsuch to the Supreme Court, the Democrats weren't able to use the filibuster to obstruct the nomination. That's because they eliminated the filibuster by invoking the "nuclear option" in 2013 under the leadership of Senator Harry Reid; who was Senate Majority Leader at the time. The Republicans followed suit and expanded that option to cover Supreme Court appointments. While there is no guarantee that the Republicans wouldn't have done this themselves to facilitate the Gorsuch nomination, the fact that the Democrats had done it first made it easier to do.
What Senator McConnell did in obstructing the nomination of Merrick Garland was wrong. Unconscionable. A severe dereliction of his duty as a senator. I wrote about this back in 2016. Senator McConnell gave a speech on the Senate floor at the time. This is an extract:
The American people may well elect a president who decides to nominate Judge Garland for Senate consideration. The next president may also nominate somebody very different. Either way, our view is this: Give the people a voice in filling this vacancy."
The people had their voice heard. They had elected the president and the senators who would fulfill their Constitutional role to "advise and consent." The decision to stop a nomination of a president when he or she is a true lame-duck, after their replacement has been elected has some merit. It has no merit when the president still has over 300 days left in office.
Now Democrats are saying that Senator McConnell should wait until after the mid-term elections to give that same voice to the people. It was wrong in 2016 and it would be wrong now. Further, it isn't a true equivalency. If we were electing a president, it would be a true equivalency. Since we aren't, it is a false equivalency. If you view the role of the Senate as being to advise and consent, as articulated in Federalist Paper #76.
IMO, the role of the Senate is to advise and consent regarding the qualifications of the nominee. Not to make the nomination into a partisan issue, where ideology rather than qualifications determine the suitability of the nominee.
But there is no way to separate ideology from this process. Why was the nominate of Robert Bork to the Supreme Court rejected on a vote of 42-58 that was almost entirely partisan in nature. It wasn't his lack of qualification for the post that caused 52 Democrats and 6 Republicans to vote against him. It was his stated opposition to the decision in Roe v Wade that was primarily responsible for the failure of his nomination. How ironic is it that whoever is nominated by Donald Trump will probably cast the deciding vote in a future case that will overturn that landmark decision. It is also ironic that when Richard Nixon nominated Harry Blackmun to the Supreme Court, he was considered a conservative jurist, but he ultimately became one of the most liberal justices on the court; and he authored the majority opinion in Roe v Wade.
* * *
What I am hearing are the primary concerns regarding the nomination and confirmation of the replacement for Justice Kennedy are:
Roe v Wade
Equal rights for the LGBTQ community
Affirmative Action
Civil Rights
All of these are valid concerns. But there is a more specific concern in the area of civil rights and that is the issue of voting. I suspect that the Voting Rights Act is in jeopardy. I suspect that it will be easier for state governments to engage in partisan-gerrymandering even more than they do now.
Pennsylvania has 18 seats in the House. Two of them are currently vacant. Ten are held by Republicans and six by Democrats. The governor of the state is a Democrat but Republicans hold the majority in both houses of the state's bicameral legislature. We are two years away from another census and that will result in reapportionment of the 435 House seats, and the redrawing of districts afterward.
What do we do? Engaging in a war on civility won't help the Democratic party gain control of either the House or the Senate. Is there a strategy that the Democratic minority in the U.S. Senate can use to stop the next nomination from Trump? Yes, but it is risky. It was laid out in a piece written by Gregory Koger, a political scientist with a Ph.D. from UCLA who is an expert in filibustering and obstructionism.
Article One, Section Five, Clause One of the U.S. Constitution says:
"Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide."
There are 51 Republicans currently in the Senate. Senator John McCain is at home on extended leave. The Democratic minority could use quorum calls to demonstrate that the Senate doesn't have a quorum and prevent the Senate from doing business.
Professor Koger points out four pieces of legislation that Senator McConnell is preventing from being brought to the floor for discussion. If the Democrats were to use those four bills as justification for using the quorum call strategy, rather than contesting the nomination of whoever Trump sends to the Hill to fill Justice Kennedy's seat, it could cause the Senate to grind to a halt. Preventing consideration of the nomination to the Supreme Court to be delayed. Could it be delayed until after the November elections? Who knows.
posted by me at 1:28 PM
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