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The Backup QB Could Try A Hail Mary As The Clock Runs Out

A staffwriter at DailyKos has come up with a plan to actually confirm Merrick Garland to the United States Supreme Court.

On January 3, 2017, Democrats will hold the majority in the Senate for a few minutes, until the newly-elected Senators are sworn in. Biden could convene the Senate in those few minutes and call for a vote. The majority could then suspend the rules and vote in Merrick Garland.

More elaborately: at some point on January 3, 2017, 34 Senators’ terms will have expired. Previous to the election, the composition of the Senate was 54 Republicans, 44 Democrats, and 2 independents who caucus with the Democrats. The results of the election were such that the Republicans held 22 seats, the Democrats held 10 seats, and picked up two formerly Republican seats.1

Now, 2 U.S.C § 1 provides that the incoming Senators’ term must begin on January 3, but 2 U.S.C.§ 21 provides that a new Senator must take the oath of office prior to taking his or her seat: the oath of office is the final step in the process of this person becoming a Senator. Meanwhile, 3 U.S.C. § 101 specifies that the new President and Vice President, who presumably will be Donald Trump and Mike Pence, shall not take office until January 20, 2017. So on January 3, 2017, Barack Obama will still be President and Joe Biden will still be Vice President.

So there will be a very brief period of time after the Senate convenes and before the new class of Senators2 are sworn in and recognized, that the Senate will be “short staffed.” There will at that moment be only 66 senators total. During these few “short-staffed” moments, the composition of the Senate will be 30 Republicans, 34 Democrats, and 2 independents who caucus with the Democrats. As Democratic minority leader Chuck Schumer won’t be sworn in yet (he’s part of the incoming class of mostly re-elected incumbents), the ranking Democrat in the Senate will be Dick Durbin. Democrats will, for that very brief moment, have procedural control of the moment-to-moment affairs of the Senate by virtue of Vice President Biden presiding, and a majority of votes by virtue of having a full quorum within their own ranks.

The play goes as follows:

  1. At noon on January 3, 2017, Vice President Biden takes the chair of the United States Senate, in his Constitutional capacity as President of the Senate. He calls the Senate to order.
  2. Instead of recognizing and swearing in the incoming class of elected Senators, Biden instead recognizes Senator Dick Durbin and not Senator Mitch McConnell, which would otherwise be the custom.
  3. Senator Durbin then moves to suspend the rules of the Senate, and immediately vote upon the confirmation of Merrick Garland to the Supreme Court without debate.
  4. Republicans jump up and down and scream as if they had just been branded. But Biden ignores this; he refuses to recognize any Republican for any reason.
  5. Durbin’s procedural vote passes on straight party-line vote, 34 (or 36) to 30. Incoming elected Senators, not yet sworn into office, cannot vote.
  6. The substantive vote to confirm Judge Garland takes place immediately thereafter. With 34 (or 36) votes against 30, it doesn’t even matter if the Republicans walk out; the Democrats still have a quorum. Garland is confirmed.
  7. Waiting in the wings, Garland immediately takes his oath of office.
  8. Only after he receives word that Justice Garland has sworn his oath does Vice President Biden lead the Senate in swearing in the new class of Senators and the other usual ceremonies of beginning a new Term of Congress.

My knowledge of parliamentary procedure is such that this plan is at minimum not crazy. I can’t think of what Republicans might do to stop it as a procedural matter. I find no guidance whatsoever in the Constitution.

Here are my questions, and I don’t know the answers to them.

  1. At what time of day on January 2, or January 3, will the outgoing Senators’ terms expire? I think the answer is noon on January 3, 2017. But I’m not sure. Up until then, the outgoing Senators are still Senators and get to vote, which means up until then, the Republicans have a majority of seats.
  2. In the pre-enrollment “short-staffed” period, the Senate will not have adopted its formal rules of procedure yet; these are agreed to by the Senators as part of those opening ceremonies. So what rules govern its procedure? Neither the Constitution nor the U.S. Code appear to offer any guidance: until the rules are adopted, it looks like it’s pretty much just “majority wins.” But I might be wrong about that.
  3. Could one of the 30 Republicans (say, Senator McConnell) file a filibuster in writing with the Secretary of the Senate pursuant to 2 U.S.C. § 30b?
  4. Do Senate Democrats and Vice President Biden have the stones to actually do this?

And here’s my concern: this pretty much throws any notion of comity to the wind. This is outside of the Senate’s usual norms, outside of standing political norms, and without any precedent that I can see in history at all.3 This basically means that Democrats will be forfeiting any chance of any reasonable treatment in the future to the wind, and the fact of the matter is Republicans are both better-disciplined than Democrats and in the majority, so the Senate become a pretty much straight party-line body from that point forward. The Era of Bad Feelings will be fully underway.4 Is that what we really want the Senate to be?5

Phrased alternatively, after a maneuver like this, could the well ever be un-poisoned?

Consider this before you address this concern about the Senate, whether you’re a Republican or a Democrat or something else: Justice Ruth Bader Ginsburg is 83 years old, and while currently able to serve, has gone through several episodes of uncertain health in the past few years. The chances are pretty good that President Trump will nominate her successor in his first (and hopefully only) term in office. Recall further: frequent swing vote Anthony Kennedy is 80 years old.

It seems anti-democratic, but as we’ve been reminded a lot recently, we live in a republic, not a democracy. Which means that sometimes, a counter-democratic result is the legally valid one. Sort of like electing a President who does not have even a plurality of the votes of the American people because that’s how our Electoral College works. It would be a Hail Mary pass thrown as the clock runs out (by the backup quarterback, no less). A mid-court buzzer-beater shot. A walkoff home run on a full count by an injured batter. And it could change the tone of politics for at least a generation, and not for the better.

 

Image by DonkeyHotey Notes:

  1. I assume for purposes of this analysis that Republican John Neely Kennedy defeats Democrat Foster Campbell in Louisiana’s runoff election to be held on December 10. As this seat, formerly Republican David Vitter’s, will be vacant on the morning of January 3, 2017 before either Kennedy or Campbell is seated, it doesn’t actually matter, no more than do Tammy Duckworth’s unseating of Mark Kirk or Maggie Hassan’s squeaker unseating Kelly Ayotte. []
  2. “New class” is a misleading term as most of the members of the incoming class are incumbents who were re-elected. []
  3. For that reason, Judge Garland himself may want no part of this plan. []
  4. I wish I had originated that phrase, but some say this has been the state of affairs for the past eight years anyway. []
  5. Vice President Biden has mused that he will not rule out a third run for the Presidency in 2020. In 2021, he will be 78 years old. I don’t think he’s got a realistic shot at the White House anymore: if he does this, it’ll almost certainly be the last act of political significance of his long career. []

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Pseudonymous. Practices Law. Lives in Southern California. Editor-in-Chief of Ordinary Times. Homebrewer. Atheist. No Partisan Preference. Likes: respectful and intelligent dialogue, good wine, and puppies. Dislikes: mass-produced barley pop, magical thinking, and insincere people. Follow him on Twitter at @burtlikko, and on Flipboard at Burt Likko.

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207 thoughts on “The Backup QB Could Try A Hail Mary As The Clock Runs Out

  1. A tweet that I just saw that does a good job of critiquing this particular maneuver:

    Please, Democrats, do this.I will happily spot you one seat on the Supreme Court in exchange for you doing this. https://t.co/bXRfYutpqF— winter is eddie (@random_eddie) December 6, 2016

    As moves go, I see this particular move as being one that would accelerate whatever is coming rather than kick it down the road a ways.

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  2. Awesome post, Burt. A question, what overlap would this move have with the court case of NLRB v. Noel Canning?

    Any?

    Because it seems like it would have a non-zero amount (though, of course, I am not a lawyer).

    I imagine that the case of Donald Trump v. Joe Biden (or whatever the case would be… jeez… Biden v. Trump after the names flip around after the district case gets appealed?) will make it to the Supreme Court for a second time at which point the big question would be whether Garland would recuse himself.

    And if Garland recuses himself, there are three possible (if not equally likely) outcomes, it seems to me:

    A) Unanimous decision that this was a shenanigan but well within the powers of the Senate. Garland stays.

    B) Unanimous decision that this was a shenanigan that goes beyond the pale. Garland rides off into the sunset, sadder but wiser.

    C) 4-4 split down partisan lines and NLRB v. Noel Canning is the precedent that holds and Garland rides off into the sunset, defiant.

    If Garland does *NOT* recuse himself, I imagine A) and B) are still possible but C) gets into some really, really weird territory.

    Anyway, my musings depend on the assumption that there is some overlap with NLRB v. Noel Canning. Is there any?

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    • I don’t think as much as you might think. We have two big ideas to come out of NLRB v. Noel Canning: first, a recess appointment happens whenever the Senate is not in session (according to the Senate’s own rules); and second, the Senate cannot be in session even if it appears to claim to, if it does not actually have the capacity to conduct business. Neither of those apply here. Judge Garland has not been offered as a recess appointment. And the projection is that with 67 total members and a quorum of those members present, the Senate would possess the ability to do business.

      That’s why I wonder about the adoption the Senate’s Rules of Procedure, though — can the Senate transact business without having first adopted Rules of Procedure? If not, then your instinct about the Noel Canning case would be on point.

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      • Yeah, there’s a *HUGE* difference between The President gaming the rules to appoint a judge and the Senate gaming the rules to approve a judge the president appointed.

        It’s the amount of monkeyshines involved that makes me wonder at the overlap.

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    • per Wikipedia, ” Candidates are nominated by the President of the United States and must face a series of hearings in which both the nominee and other witnesses make statements and answer questions before the Senate Judiciary Committee, which can vote to send the nomination to the full United States Senate.”
      Now, does ‘must’ – as used here – mean it is a required prerequisite, and therefore the ‘full’ Senate (also in question) cannot vote on this nomination?

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      • I don’t know if Wikipedia is correct. After all, the hypothetical involves the Senate agreeing to suspend its normal rules of procedure (or, perhaps more accurately, not yet adopting them for that Session of Congress).

        The word “must” does some unearned work in that quote — “must usually” or “in modern era has been required to” would be more accurate. So if you wanted to argue that the “full” Senate is required to confirm a Justice to the Supreme Court, the authorities you need to consult to support that conclusion are the Constitution and the United States Code (I suggest you start here as I am pretty confident the only applicable part of the Constitution is the “advice and consent” clause which does not offer us guidance on this point).

        Furthermore, consider this: for those few moments that the Senate is “short-staffed,” after it is called to order and before the incoming class is sworn in, 67 Senators will actually be the “full” Senate. At that moment, there will be no other Senators other than those 67.

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        • I should add that before the 1930’s, confirmation hearings like what we have today were out of the ordinary. Confirmations that resulted in massive, national political theater didn’t really get underway until 1968, when LBJ tried to appoint Abe Fortas to the Chief Justiceship, shining a light on Fortas’ questionable personal financial dealings. Before that, the Senate did investigate nominees, but a Bork-style hearing is really a thing of the Reagan years.

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  3. And here’s my concern: this pretty much throws any notion of comity to the wind. This is outside of the Senate’s usual norms, outside of standing political norms, and without any precedent that I can see in history at all.3 This basically means that Democrats will be forfeiting any chance of any reasonable treatment in the future to the wind, and the fact of the matter is Republicans are both better-disciplined than Democrats and in the majority, so the Senate become a pretty much straight party-line body from that point forward. The Era of Bad Feelings will be fully underway.4 Is that what we really want the Senate to be?5

    Switch some names around and this is how I would describe the GOP’s Garland blockade. That said, I wouldn’t support this maneuver. Setting aside the question of whether or not the Dem’s are obligated to take one on the chin in order to slow our procedural race to the bottom, I think a maneuver this radical would create a very real risk that the GOP retaliates by court-packing.

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    • The Republicans have decided on a deliberate strategy of constitutional hardball against any Democratic President during the time Newt Gingrich was Speaker of the House. McConnell just took this strategy to its natural conclusion and decided that Obama was going to be denied as many victories or accomplishments as possible. There is no comity anymore. The norms that made the Constitution have been destroyed by the Republicans and they are not coming back.

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    • There is a difference between a majority of the Senate deciding not to vote on something, and a minority passing legislation through a brief rift in the space-time continuum.

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        • The precedent on the first one is entirely debatable. A majority choosing not to vote on an item happens a lot.

          34 Senators passing legislation while the majority and the states they represent are momentarily disenfranchised has no precedent.

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          • Only if you define the problem as the majority refusing to bring an item to the floor, rather than the Senate refusing to confirm any nominee by the sitting President. That’s a little different from refusing to bring up comprehensive immigration reform for a floor vote, no?

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            • There is no rule or norm that the Senate must confirm any nominee? My only point is that it is debatable about whether there was an agreed precedent on having a vote, and that itself involves a lot of issue framing. The majority frequently exercises the power not to vote.

              This proposal is about a design to disenfranchise elected Senators and the states they represent.

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              • There’s no norm that the majority confirm any nominee, but there is a norm that they confirm a nominee.

                The Constitution gives the president the power to nominate supreme Court justices. By your logic, was the Garland blockade not a move to deprive him of his constitutional prerogatives and partially disenfranchise those that voted for him in 2012?

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      • It seems like the outcome would be “the president doesn’t get to confirm anyone, unless his/her party controls the Senate as well”. That…doesn’t seem like a stable equilibrium.

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  4. And here’s my concern: this pretty much throws any notion of comity to the wind.

    Hmmm. So obstructing the SC appointment on the proferred grounds (procedural nutpicking) hadn’t already done that, but it’s the Dems use of procedural nutpicking that would throw comity to the wind?

    Let’s go with Jaybird’s formula for what’s happening right now: divorce or war. Seems to me that conservatives’/the GOP’s blocking of the Merrick nomination the way they did, on the grounds they did, constituted an act of war. Comity has – as we all know from actually watching the last eight years – already flown the coop. Given that, I fall on the other side of the line here.

    {{But while I could see the GOP doing something like this in a heartbeat, I don’t think Dems have the balls. They’re still bringing the fancy Adult Party dinnerware to a gun fight.}}

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    • Seems to me that conservatives’/the GOP’s blocking of the Merrick nomination the way they did, on the grounds they did, constituted an act of war.

      I agree with this.

      If they had held Kabuki hearings, scheduled them, cancelled some of them at the last minute, then ran out the clock in deliberations, that would have been a different game altogether. Also a defection in our little iterated prisoners’ game, but one that has a *LOT* of institutional cover.

      Even if people argued that it was a defection, “reasonable people could disagree” about it.

      The way the Republicans handled it, however, was an out and out “Eff You”.

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      • Which is in and of itself disturbing. You would think kabuki would have been the smarter play, but they felt that signalling to their base that they were in total opposition was more important than signalling to everyone else that they were reasonable people trying to accommodate that dastardly liberal Obama.

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        • Which is a large part (in my view) of why the GOP lost control of their own party and now we have Trump. The GOP’s persistent, identity-defining rejectionism of institutional structures and civil norms ultmately turned inward and became internalized by its own base. What was supposed to be a calculated move to demonize Democratic/liberal institutional thinking became a larger critique of both parties.

          Which isn’t to say that the Merrick obstruction gave us Trump. More to say it was of a piece with a logic that did. For better or worse.

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          • >>Which is a large part (in my view) of why the GOP lost control of their own party and now we have Trump.

            Which would suggest that (1) stand back while the Trump GOP implodes + (2) field better candidates would be a better long-term strategy than (3) co-opt GOP tactics. Unless the goal is to have two alternately powerful, shitty parties that cater to respective shitty fringe constituents.

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            • So, play the long game, yes?

              I don’t think the Dems as currently constructed will survive the long game. Without changing gears, anyway. One shift might be to misbehave.

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            • Unless the goal is to have two alternately powerful, shitty parties that cater to respective shitty fringe constituents.

              At this point, the main question I have is whether Democrats will achieve the level of tone-deaf stupidity required to lose 2020 or whether they will fail to achieve that level.

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              • One thing I’m learning in this thread is that liberals align with Democrats because of their inherently conservative predispositions.

                But conservatives have already lost to Trumpism once, in this election. And he beat up on the GOP field along the way taboot.

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      • “Eff you” was the point. The Republican Party is so certain in its beliefs that they believe the Democratic Party and any politician from it is completely illegitimate. Even kabuki hearings with a no vote would seem like giving the Democratic Party too much legitimacy to many Republicans.

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  5. With what Don Zeko said above, haven’t the notions of comity already been thrown out the window.

    The GOP embarked on a policy of total obstructionism since Obama took office in 2009 and by all accounts it was wildly successful. They retook the House in 2010 and the Senate in 2014. The only defeat they had was Romney in 2012. This does not mention the utter decimation of state level Democrats in many areas.

    What are the Democrats to do as the opposition? Just keep the higher morality and be one-sided holders of democratic norms and comity. That seems to be a way of being a permanent minority party and one that might be under literal fire based on last Sunday’S attack at Comet Pizza. At what point, do you think Democrats have the right to take off the kid gloves?

    When does the pressure go on the GOP? The answer seems to be never.

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    • Saul, consider this:

      Now that this plan is inching its way out into The Real World and evolves from something that the Democrats never considered into something that the Democrats would have to actively dismiss, what happens if the Democrats deliberately decide to not do it?

      Will your opinion of them be lessened?

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  6. Haha!

    This would pretty much confirm that no side held in moral high ground. So everyone who was saying that the Dems were better than the Repubs for never having hearings? Well, ain’t gong to be claiming that anymore are ya? I’d love to see this. I might get to watch it all burn down during my lifetime. Get on it Dems!

    I wonder what price you’ll pay though afterwards? Payback’s a bitch.

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    • This argument requires that there are literally no more norms that the GOP can break in retaliation, or at least none that you believe they possibly would break. As I said upthread, i don’t think that’s true…yet.

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      • This is what worries me. The Democrats would be completely justified in doing it but I’m not sure I want to watch the next few levels of inevitable escalation. Or maybe Damon’s right and we’ve passed the point of walking back to most or many of the past norms.

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        • but I’m not sure I want to watch the next few levels of inevitable escalation.

          Why not? Would you rather have the Dems go all Chamberlain on us, delaying and apologizing for the inevitable? Or worse, trying to maintain an above decks window seat on a ship slowly leaving harbor headed for a destination you never wanted to go to … but the ride is SO nice

          And how much ground is ceded along the way by doing so?

          Add: Here’s another way to say it: the ship is already leaving port (medicare vouchers, privatizing social security, dismantling the ACA, roll-backs on Roe V Wade, tariffs on imports, etc etc), so why do you wanna get on board that boat?

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          • headed for a destination you never wanted to go to

            How bad is this particular destination (compare it to Civil War and the, oh, two decades that follow the Civil War)?

            This question ceases to be rhetorical in the next 10 years, by the way.

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            • How bad is this particular destination

              On a conventionally defined political calculus, very bad.

              On a “let’s not start shooting each other” calculus, not so bad.

              On a “how does conceding to a “let’s not start shooting each other” calculus ultimately effect the “political calculus when one party is already shooting” calculus”, very bad.

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          • Because bad policy and/or policy I disagree with can be changed within our current constitutional structure. Conversely a constitutional crisis can result in a new, worse system. I think it also increases the likelihood of violence, including of the state variety that I worry about most.

            Put it this way. I’d prefer we retain the welfare state as opposed to gutting it. However if the democratic process produces something else then I can deal with that, and the solution is to go out and do the hard work it takes to obtain a different outcome. What we may not be able to undo is a situation where the Republicans retaliate by packing the Supreme Court, especially if the long term result is a complete collapse in the legitimacy of the judicial branch and people stop complying with it.

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            • a constitutional crisis

              How would Democrats availing themselves of a perfectly constitutional act create a constitutional crisis? Isn’t that … incoherent??? :)

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              • The constitutional crisis isn’t the vote. The constitutional crisis is when the Trump administration refuses to abide by an adverse holding that relies on a vote from Garland (something which may happen anyway) or precedent becomes meaningless because every time the executive and legislative branch has the right composition they expand the size of the SC and add a few new philosopher kings.

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                • If the Trump admin are the kinda folk who’d refuse to abide by an adverse holding based on Merrickian constitutional principles, then their extra-constitutional decisionmaking doesn’t derive from the Dems appointing Merrick. Since that’s perfectly constitutional.

                  We got carts and horses, and we got kits and kaboodles.

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                  • I think you’re confusing my opinion about the desirability of these (very) hypothetical events with laying blame. I’ve already said the Democrats would be justified in doing it. I still don’t think it’s a good idea. It’s very possible for an action to be provoked, justified, and create or help pave the way for a bad outcome.

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                    • Exactly. Make no mistake, the GOP stole a Supreme Court seat from Merrick Garland. But while one might debate the legality or morality of getting a gun and breaking into the house of the guy that robbed you, it’s awfully hard to argue for the wisdom of doing so.

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                      • But while one might debate the legality or morality of getting a gun and breaking into the house of the guy that robbed you, it’s awfully hard to argue for the wisdom of doing so.

                        Why tho? The guy stole your stuff!!. Who’s gonna get it back if not you? The electorate?

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                    • I get that. I think it’s – masomenos – Burt’s view as well. But from where I sit, the GOP has demonstrated that all’s fair in love and war, and they’ve declared war on the Democratic party. Given that, I’m not sure appeasement, on the promise that GOP heads will cool down, is an effective political strategy.* I mean, they will, eventually, either when they’ve achieved all their goals or when their policies are so widely reviled that they wonder how they coulda happened in the first place since noone they know ever advocated ’em.) So I think it could actually lead to a good outcome, one which our current “institutional” thinking precludes us from seeing in our freshly minted “post-institutional” Trump reality. The ground has changed, yo.

                      *Unless we’re talking about minimizing bloodshed in the streets, of course. And I don’t know what to say about that except that a bully who gets more violent in response to obstruction, including when his own power principles are used against, him needs to be confronted on power terms rather than “negotiated” with.

                      (Shorter: Tubas are louder than pianos.)

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                      • I really hope bloodshed of any kind is far, far away, and Trump proves all of the skeptics wrong. Even if the result was a well deserved comeuppance I would take no joy or satisfaction in it.

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                      • Stillwater: I get that. I think it’s – masomenos – Burt’s view as well. But from where I sit, the GOP has demonstrated that all’s fair in love and war, and they’ve declared war on the Democratic party. Given that, I’m not sure appeasement, on the promise that GOP heads will cool down, is an effective political strategy.*

                        I think there are more than a few in the GOP leadership that are very surprised that going all in, starting with debt ceilings, continuing with Garland, and cummulating with Trump – actually worked.

                        I also think there are asymmetries between the sides in the ‘both sides’ construct that prevents the Democrats from successfully executing any scorched earth strategies.

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                        • But it’s not scorched earth. “We think that the last election’s voters should decide who fills the current SC opening and while we admit that the Senate has a roll to play in advice and consent we also believe that they’ve spoken regarding their views. Those in favor? They “ayes” have it!”

                          Personally, I think something like this would not only take some balls, but would give some to a party sorely lacking therein.

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                          • If they could pull this off, that’d be a sight to see.

                            It’d give Trump a humiliating loss on DAY FREAKING ONE of his presidency, eat up at least two news cycles, the first one devoted to it happening, the second one devoted to Trump’s subsequent meltdown.

                            And the voters have two whole years to forget.

                            The only thing that *MIGHT* go wrong is that there is a Big Supreme Court Case between January and 2018 that goes 5-4 in such a way that really pisses off the Rust Belt Types.

                            Well, that mixed with the economy doing fairly well and Trump being fairly well-liked in the buildup to November 2018.

                            What are the odds of that last part, though?

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                            • Well, that mixed with the economy doing fairly well and Trump being fairly well-liked in the buildup to November 2018. What are the odds of that last part, though?

                              Probably pretty high. Insane-Trump-the-racist won the election, but he lost 4% of the GOP in the process (from the NYT’s polling).

                              If we assume Trump is actually pretty sane, not a racist, and it was a show; Then after 4 years of not blowing up the world or the economy he’ll be still-vulgar-but-the-less-risky-choice. So he’d get that 4% back. He’ll also have all the advantages of incumbency.

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                              • Does he sign the Medicare privatization act, or not?
                                Do people get dumped by their health insurer for pre-existing conditions, or not?
                                Does unemployment go up, or down?
                                Do people’s paychecks feel heavier or lighter?
                                Are the Iranians, Chinese, and Chamber of Commerce types still amused by his tweets, or not?
                                Does the Mideast get more peaceful, or more inflamed?
                                Do American boys start coming home in bodybags from places no one can find on a map?

                                Incumbency also has its downsides.

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                                • Incumbency also has its downsides.

                                  Asking those questions retrospectively to GWB and Obama makes them look pretty bad, and they both still won.

                                  Further a lot of the going-over-a-cliff problems they had were ideological in nature. For ideological reasons, even though it was unpopular, Bush tried to reform SS and Obama did pass Obamacare. Trump probably doesn’t have an ideology.

                                  Trump won’t privatize Medicare unless there’s public support, he might prove better (or worse) at getting support than either GWB or Obama but that’s a different issue. In 4 years our clown in chief will have a track record, and if he’s shown that he’s sane and a great manager, that’s probably enough.

                                  Also imagine how much of a blow out the election would have been if Trump hadn’t done his top 20 most insane stunts, i.e. if he’d started with the same team he ended with.

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                                  • Trump won’t privatize Medicare unless there’s public support,

                                    Or he may privatize it and “sell” the policy as Making America Great Again.

                                    He certainly didn’t campaign on that policy. There’s no telling with this guy.

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                                    • Or he may privatize it and “sell” the policy as Making America Great Again.

                                      If he’s good enough to sell the elderly something like that, then maybe it’d be good policy. It’d certainly be how Democracy is supposed to work.

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                                  • In 4 years our clown in chief will have a track record…

                                    Thats my point-
                                    Trump may not want to privatize Medicare or repeal Obamacare, but the most powerful men in Congress do, really really badly.

                                    So Mr. Rust Belt Trump fan is going to see Congress chomping at the bit to take away his insurance and Medicare, and Trump is going to have to make a decision how to react, one that he can’t bullshit his way out of.

                                    The GOP civil war isn’t over. Its just begun.

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                          • But it’s not scorched earth. “We think that the last election’s voters should decide who fills the current SC opening and while we admit that the Senate has a roll to play in advice and consent we also believe that they’ve spoken regarding their views. Those in favor? They “ayes” have it!”

                            They’d be going back two elections, to 2012.

                            In 2014 the GOP picked up 9 Senate seats by running against letting Obama do his thing.

                            In 2016 the GOP picked up the Presidency, effectively ruling out a 3rd term for Obama.

                            Giving a big middle finger to the results of the last 2 election cycles is unlikely to result in good things, and speaks well to the narrative of the Dems being corrupt, smug, elitists who don’t listen to the voters. To that you’d add power hungry, not respecting rules, and untrustworthy.

                            This might play well with their base but claiming 33 Senate votes is “enough” would not play well with the independents for years… that “might” not matter if Trump screws up bad enough, but in a 50/50 country you probably don’t want this kind of rep.

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                        • I also doubt the D’s can really carry though the scorched earth thing the way the R’s could. I also don’t think they should.

                          I’m pretty sure there are some R’s in congress who, foolishly it seems, actually believe all those conservative bromides about free markets and such. They are feeling quite a pinch right about now.

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                          • Well, this time it’s for real, since they own the consequences.

                            {{Personally, I don’t see the GOP doing anything radical without Dem support. And if history is any guide, they’ll get it. So the worry, as always, is what will Dem Sens do??

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                      • Burt’s basic view is a) the balance of power on the Supreme Court is a very important thing, worth fighting for, and b) the institutions and traditions of our form of self-government are even more important because even if the Court is lost for a time, it can be won back over the course of a generation, but once our political culture is transformed, it’s not ever going to evolve back into what it once was. So what do we want the future to look like? I don’t think we want it to look like the “whole government collapses into paralysis thing” that happens in some parliamentary democracies after a vote of no confidence. I think we want it to look like “The minority party gets a place at the table, it gets heard, its ideas get considered.” I think we want it to look like “Presidents appoint judges and the Senate confirms them unless they’re too far out of line.” McConnell and Co. have deviated from that norm for the past several years, culminating in overtly ignoring an obviously well-qualified judicial nominee. That doesn’t change our political culture unless Republicans get met with something similar in response, which is why although this move seems possible, it ought to be very carefully considered under the category of “Do we want our government to be this way going forward?” I’m far from certain we do. I think won the day with the comment about preserving judicial independence above: that’s a very good reason not to do this even if it’s possible. Which it might not actually be, given the likelihood of poor discipline.

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                        • “Do we want our government to be this way going forward?”

                          I hear that, Burt, but again, when you write the above I think you’re missing the point. The GOP has already poisoned the well by playing shenanigans with procedure. So, again, I’m not sure why you think Dems doing the same thing might make our institutions collapse, especially given that Obama had a shenanigan-prior right to that appointment. Or at least a hearing.

                          Or is the argument that Dems are the process/civility/comity party? (How’s that working out for them?)

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                          • The GOP has already poisoned the well by playing shenanigans with procedure.

                            The Constitution says one of the Senate’s jobs is to prevent the President from making SC picks of which they disapprove. That’s a world of difference from a minority of the Senate taking control for a few minutes.

                            So, again, I’m not sure why you think Dems doing the same thing might make our institutions collapse…

                            You don’t see a problem with a third of the Senate overturning the recently expressed will of the voters? Trump ran, in large part, on who he’d put on the SC.

                            These Senators would need to run on this vote, and giving a big middle finger to the electorate, in the next election, which is going to be pretty brutal for the Dems anyway. This kind of stunt might hand the GOP a super-majority.

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                            • The Constitution says one of the Senate’s jobs is to prevent the President from making SC picks of which they disapprove.

                              No, the Pres gets to make whatever picks he wants. If the senate could prevent picks I’m sure Harriett Miers woulda been obstructed pro forma.

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                            • You don’t see a problem with a third of the Senate overturning the recently expressed will of the voters?

                              What, they’re blocking Hillary from being inaugurated as President?
                              OUTRAGE!

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                            • Trump ran, in large part, on who he’d put on the SC.

                              I don’t know what campaign you were watching, but Trump, in effectively no part, ran on who he’d appoint. That SoCons came out for him *at the end* wasn’t attributable to his public campaign.

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                            • Given that the Garland blockade didn’t seem to have any effect upon the fortunes of GOP incumbent Senators at all, it may well be the case that the public doesn’t care about this stuff.

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                              • Given that the Garland blockade didn’t seem to have any effect upon the fortunes of GOP incumbent Senators at all, it may well be the case that the public doesn’t care about this stuff.

                                Don’t care? More likely they actively approved of what the Senate did. The Senate isn’t subject to Gerrymandering, a large the number of Senators were elected with the expressed purpose of opposing Obama.

                                The Dem’s problems haven’t been with the GOP, it’s been with the voters. It was the evil voters who gave +9 Senate seats to the GOP in 2014 to prevent Obama from doing his thing. It was the evil voters who gave the Presidency to Trump, in no small part because of the SC (it certainly wasn’t because of Trump’s winning personality).

                                Disenfranchising very large numbers of voters might get what you want, but ignoring the voters is how the Dems ended up in this situation and I doubt doubling down leads to popularity.

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                            • The Constitution says one of the Senate’s jobs is to prevent the President from making SC picks of which they disapprove.

                              Or any appointment at all, depending on which party is holds the White House and the Senate.

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                        • even if the Court is lost for a time, it can be won back over the course of a generation, but once our political culture is transformed, it’s not ever going to evolve back into what it once was.

                          Added to my sack of quotable lines, appropriated in the name of the people.

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                        • “That doesn’t change our political culture unless Republicans get met with something similar in response”

                          Why not? They’ve already been rewarded for it once, what’s to stop them from doing it or similar things again, regardless of what the Dems choose to do?

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                          • At times I feel the argument goes like this:

                            GOP punches Democrats in the face, repeatedly.
                            Pundits: Democrats, don’t start a fight! We’d lose the ability to work together if you start a fight!”
                            Democrats: “We’re getting punched in the face and this isn’t a fight?”
                            Pundits: “Not unless you punch back. If you punch back, you’ll be the one to blame!”
                            Democrats: “WTF”

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                • Oh, the court packing wouldn’t be like that. It’d be like this.

                  3 JAN 17: Democrats in momentary majority slip Garland in under the radar. Boom! Take that, Republicans.

                  4 JAN 17: Republicans in durable majority announce “SCOTUS should have 11 Justices. Because we can do it and you can’t stop us.”

                  MAR 17: Law expanding SCOTUS passes Congress.

                  APR-JUN 17: Two new Justices nominated by Trump, confimred by Republicans.

                  JUL 17: Republicans in durable majority announce “SCOTUS has too many Justices. We’ll reduce the size of the Court to 9 Justices, and we’ll get there by attrition.” Remember, the likeliest next two to go off the bench will be Ginsburg and Kennedy because they’re the oldest.

                  Because, after all, principles and reasons are out the window now. We’ve abandoned even any kabuki of some sort of objective justification for a nakedly political action. “We’re doing it because we can,” will at that point be justification enough and “If you want to stop us why don’t you try winning some elections” will become a sufficient defense.

                  That’s what it would look like. Could the Democrats, in minorities of both houses, somehow stop this?

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                  • No they couldn’t stop it. And when the Democrats retake power, which will be a lot sooner than everyone thinks, they will be fully justified in taking similar action and the dysfunction of our federal government will reach new heights. Even with a virtually guaranteed comeuppance for the GOP it’s not something I’d ever celebrate.

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                  • This and the Garland discussion point to the problem that poisoning the well of political discourse is one issue. The other is whether the independence of the federal judiciary could withstand it.

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                  • That strikes me as a gentle version of what could happen. And what could the senators from the newly-formed Orecaliforninois do against the weight of the 12 senators from North Texas, Northwest Texas, Mid-NorthWest Texas, et cetera? Because if all decorum is out the window, you’re going to be shocked at how many things we used to do just out of decorum.

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                    • The Constitution makes it hard/impossible to consolidate states and/or break them up to create new states.

                      Article 4 of the Constitution states:

                      New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

                      Texas might go for being broken up (but I doubt it) and the Congressional majority for the GOP is not big enough to muster a vote in Congress probably.

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      • I agree that the Democratic Party is in a horrible and no-good position. I have zero trust or faith that the GOP will march back from the edge they are on. I think they have been taught that there is no punishment for their actions and they also are developing ideas that no Democratic Party politician/government is legitimate except as a powerless and minority party. The base shows it is willing to act on 1/4 baked conspiracy theories in violent ways.

        Yet you are right that the Democratic Party might need to be adult because the GOP can and always do more damage.

        And unlike North, I don’t have any faith that the GOP will never be punished for their misdeeds and violations of norms.

        So the Democratic Party is stuck in No Man’s Land and surrounded by land mines.

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  7. Hillary Clinton broke norms that you should be really glad everyone hasn’t even considered could be broken.

    This? This is just partisan pantsing. Bad? Probably, but not too terrible. Certainly not blood in the aisles of the Senate.

    America puts a lot of value on “controlling the majority.” Parlimentary governments don’t, in general. And they’ve mostly managed to not go completely koala (India and Israel excepted, and there are extenuating circumstances there.).

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  8. Luckily, the Republicans have taught us how to handle this. Just as “established by the state” means exactly what the Republicans want it to mean and that meaning was intended by the ACA’s drafters, this feature of the constitution that allows us to put Garland into office was intended by the framers. Otherwise why would it be there? Why are you questioning the wisdom of Our Founding Fathers?

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  9. I can’t decide if it’s comforting or terrifying that the people here suggesting the Dems should do this agree that it’s an absurd, outrageous maneuver grounded in the most cynical constitutional hardball.

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  10. The Democrats won’t do this. But we’ll wish they had when the Republicans escalate as if they had anyway and toss out the filibuster so they can ram whatever they want through on a straight 52-48 vote.

    The Dems will retain the moral high ground which, along with a buck-fifty, will buy you a mediocre cup of coffee at 7-Eleven.

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    • They’re unlikely to toss out the filibuster wholesale, because leaving the filibuster leaves an out when their base demands something (like building a real wall) and the GOP realizes it’s a bad idea.

      They can NOT do the bad idea thing, and then blame Democrats.

      Avoid the long term consequences, blame the other party, increase turnout — it’s win-win-win. For awhile.

      The GOP has been a lot better at being the minority party. It’ll be interesting to see them try to actually govern. I’m sure they can do better than Kansas.

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      • Morat20,

        They’re unlikely to toss out the filibuster wholesale, because leaving the filibuster leaves an out when their base demands something (like building a real wall) and the GOP realizes it’s a bad idea.

        That’s been my operating assumption as well, but what happens when — and it will inevitably arise — that they’re facing a Democratic filibuster of something they genuinely (if mistakenly) believe to be a Good Idea (TM) and that they really want to do? Are they going to bluster and fume but ultimately just concede the victory? Politically, can they?

        It’ll be interesting if somewhat scary to watch.

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        • Probably? Make deals. Quietly.

          I mean judicial filibusters? Those may be gone. But legislative? Those are pretty useful, and requires getting a few of the older school Republicans in the Senate to sign on.

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          • Well, yeah. That’s the thing I’m reminded of, that Senators — as individuals! — really like the filibuster rule because it gives each of them a lot of power far beyond their normal, constitutional, power as one vote out of one hundred. And they’re all quite aware that the majority/minority balance is a teeter-totter that can shift while they’re still in their current term of office.

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          • Don,
            The ACA is broken, as of this point. Fix, Repeal (which may mean Romneycare, folks, which is just the same thing as Obamacare except the GOP will fund it this time!), meh.

            At least we needn’t deal with HillaryCare, which would be blinkered by the “don’t ruin Obama’s only Liberal Program!”

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  11. But couldn’t the Republican response simply be to pack the court? For example appointing 2 young Federalist Society firebrands to give them a 6-5 control of the court?

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    • Off the top of my head, that would work for only one term because Democrat 2020 will (successfully) run against this shenanigan and we’ll have a 6-7 court for a year and a half before the Constitutional Amendment that brings us back down to either 9 or 11 (through attrition).

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      • Do you really think the Republicans would pay a price in 2020 for court packing when they didn’t pay a price for stalling Garland for a year? Especially since Republicans could easily spin the packing as a “measured response for the outrageous procedural abuse” that the Democrats committed?

        And sneaking Garland in would only pay off if Ginsberg and Kennedy stayed on the court until 2020. Otherwise we just delayed the issue, and at the cost of giving the Republicans ‘both sides do it cover’ for all their subsequent abuses.

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        • Stalling Garland is *TECHNICALLY* in their wheelhouse. “Hold a hearing!” “We won’t hold a hearing.”

          They could *TECHNICALLY* argue that their job was do the whole advise/consent thing and, god damn it, they didn’t consent.

          Garland was them not consenting.

          Court-packing is something that not even FDR could have gotten away with.

          So… yeah. I really think that the Republicans would pay a price in 2020 for court packing.

          I mean, it’s always possible that the Democrats would rally around the importance of teaching about diaper furries in sex ed or something like that and do a great job of shooting themselves in the foot even worse than the foot shooting the Republicans would do.

          But, yeah. All other things being equal, I think that court-packing would be seen by the voters as something worth rebuking in the same way that 2006 was a rebuke.

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          • The Republicans could spin the year delay as advise and consent. But they were quite open about what it actually was: refusal to allow any appointment by Obama.

            As I said above, the Republicans could easily spin the packing as a “measured response for the outrageous procedural abuse that the Democrats committed”. Why should we think that that spin wouldn’t work equally well?

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            • Because the response of court-packing would set a *CLEAR* precedent. One that Republicans couldn’t even point to FDR as reason that it’d be okay.

              I mean, if we wanted to get meaty, we could ask why Clinton didn’t campaign on the Republicans setting a precedent by not consenting? There are a handful of reasons but one, I think, is that it wouldn’t have changed *THAT* many minds.

              Though it probably would have flipped at least one Senate seat… ah, well. Woulda coulda shoulda.

              Anyway, court-packing is a brave new world.
              Refusing to consent can have the senate point at the Constitution and say “BY THIS SACRED DOCUMENT, WE DO ABIDE” and, technically, they were. Technically.

              And that technically is very, very, very, very, very important.

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      • There’s no way a Constitutional amendment would pass, though. It requires too high a supermajority for even minor changes, let alone something like this that would actually affect the balance of power. The size of the court is determined only by statute. And I’m not nearly as confident as you that the GOP would pay a price for court-packing.

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        • There’s no way a Constitutional amendment would pass, though. It requires too high a supermajority for even minor changes, let alone something like this that would actually affect the balance of power.

          I think that a change to the Constitution to change it back to the unspoken agreement would work.

          Kinda like the 22nd Amendment.

          Sure, everybody voted for FDR four times… but as soon as that happy crappy was over, they all shook their heads and said “let’s not do that again”.

          So, too, with the Supreme Court.

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            • Well, if you got one group of people willing to die for what they believe in and willing to do so by killing lots of others in service of that end, it doesn’t make a hill ‘o sense to appease the shooters and concede to their policies unless it’s a trivial or easily dispensed with issue. (But is any issue worth killing over easily dispensed with from the pov of the potential killer? It was significant enough to drive them to kill.)

              Or let me put it this way: contemporary US liberals aren’t gonna engage in an armed conflict over ideological direction. But the threat of violence against those liberals shouldn’t be the driving motive for concessions to the reactionary right.

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  12. I am curious to hear what Aaron David thinks. Based on my understanding of his position, he’d have absolutely no problem with the Dems doing this at all, even while perhaps thinking it would be a strategic mistake. As its technically within the rules, and if the voters don’t like it, they can react.

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  13. Peter Moore:
    But couldn’t the Republican response simply be to pack the court?For example appointing2 young Federalist Society firebrands to give them a 6-5 control of the court?

    Sure. But this is what trips me out: Nobody seems to ask that sort of question of the Republicans.

    It’s like all this hand-wringing over how the liberals are actually responsible for the rise of Trump and how if we don’t react just right whatever shit comes down the pike is gonna be on us.

    This whole thing feels like we’re all staring at a three year-old with a loaded revolver, fearing the worst, but unable to assign moral culpability to the toddler.

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  14. In Article I section 5 of the Constitution, the assembled chambers of each house are given the final authority to determine the ‘qualification’ of their members.

    There’s no equivalent for the judicial branch (just that they can serve as long as they’re behaving well, and you can’t monkey with their pay to force them to quit). But is there anything statutorily that gives John Roberts (or all of the Eight) a say on whether the Hail Mary Garland seating would be kosher?

    Or does it all have to play out like Marbury vs Madison?

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  15. Most Democrats yesterday “No convoluted mechanisms. Everyone should vote. The person with the most votes should win.”

    Some Democrats today “Let’s prevent a third of the people eligible to vote from voting, and win through a convoluted mechanism.”

    Eta – I mean for a month it’s been “California and New York are getting screwed!” and now everyone’s onboard with a plan to cut CA’s and NY’s representation on half?

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    • Let’s prevent a third of the people eligible to vote from voting,

      Notably, they wouldn’t be “preventing”. It’s not the Democrats fault that transfer of power works out the way it does. Blame the Founding Fathers. :)

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      • It is true that in the forgotten Federalist papers, Publius argued the merits of setting aside a “backwards time,” where the minority could pass legislation without majority approval, as a meet and just recourse against the antagonisms of factions and to instill a spirit of fair play by turnabout. This of course was just a ruse, as the real purpose was to await the time when a Catholic monarchy could be installed. All copies of this article were burnt and the original concealed in the Vatican Necropolis.

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    • When I initially heard about this plan, I was in favor–turnabout being fair play and all. But on reflection, the possibility of court-packing and further escalation leads me to think it’s not a wise move. But the argument against it based on democratic norms is extraordinarily weak–we’re talking about the Senate (home of Wyoming=California and the 60-vote supermajority requirement) and we’re in the wake of the already norm-breaking Garland blockade. If I thought this was a good idea, your argument wouldn’t convince me it was a bad one.

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    • “Let’s prevent a third of the people eligible to vote from voting, and win through a convoluted mechanism.”

      Figure out when those senators vote and when they don’t, and schedule the election for when they don’t. Explain how that’s different from what North Carolina did this past election.

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  16. It’s a bad idea and it’s too early and too small to go for this much of an arcane legalistic leap. Also the response would be awful. Better to save the hardball for fighting for something bigger and more likely to engender public support and comprehension.
    We’re gonna have to face it. Sen. Mcconnell (R) Turtletown managed to win all the marbles with this stunt at merely the cost of a bunch of conservative principles. Better to bide our time and remember.

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  17. As tempted as I am to endorse this sort of thing, I think the longer term goals would be compromised.

    I’m betting on the idea that the Republicans will NOT be successful, success defined as changing things for the better for a majority of Americans such that they increase their popularity.

    I just don’t see how either Paul Ryan’s agenda or Donald Trump’s results in anything but spectacular pain and suffering for a lot, repeat lot, of people especially the Rust Belt folks.

    I would rather increase our turnout in 2018 and take control of the Senate and presidency in 2020.

    I honestly think that very few of the 60 million who voted Trump are the die hard radicals; most who voted haven’t yet felt the pain of the perpetual promises to destroy Medicare and Obamacare. In the end, most ordinary people want the checks to keep coming, the bills paid, and most businesspeople want effective trade structures and a smoothly functioning system.

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  18. Adding-
    We really are through the looking glass, aren’t we?

    The Constitution wasn’t really designed to handle this sort of warfare. It sort of assumes you have a majority of actors working in more or less good faith. You all have seen it said before right, that America could be turned into an outright dictatorship without changing a word of the Constitution?

    The only real and effective brake on that slide is to rally the American people themselves to the idea of an honest and loyal opposition.

    Its the votes, the 60 million people who idiotically say things like “they are all the same” or “burn it all down” who fuel the slide into tyranny and madness. Until we can starve the forces of madness of that fuel there really isn’t any gamesmanship that can rescue us.

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    • For what it’s worth, my dive into the exit polls and such suggest that a large number of the people who voted for Trump realized that he had many undesirable qualities. They just wanted to shake the box and try something different.

      It’s possible that after 4 years of him, they might be a little tired of the act, and want a government that’s actually kind of boring.

      I’ve already worked up some campaign material for running as the Candidate of Boring. “You’d rather be thinking about stuff other than the government, right? Government is best when it’s boring!”

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      • Optimistic signs for me include the immediate regrets felt by the coal miners who stand to lose their Obamacare, and middle aged and seniors worried about losing Medicare.

        I would add the business and professional class seeing the global trade ramifications of having the Drunk At The End Of The Bar tweeting madness to China and Wall Street at 3 AM.

        Maybe Mr. Low Info Voter in Michigan says “Ya you tell ’em, Donny!” but the corporate investor seeing his Boeing stock slide is probably not amused.

        At some point a bland technocrat like Biden will look pretty good for business.

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  19. I do not support this. Further erosion of norms is bad, of course. But I have another reason.

    This is basically what we call in computing a “race condition”. One process has to complete before another thing does, and there are no inherent dependencies between the two processes. I think that there is probably a way for the incoming Senate majority to win that race condition, especially since they control the Senate right now.

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  20. I have another reason for not doing this. I’m less panicked by this election now than I was. I don’t see the Medicare voucherization as happening. I think the Obamacare repeal will not make it through the Senate. I’m not sure Obamacare repeal will get a majority in the Senate, in fact.

    I see the House as getting in a war with Trump over his desire to do protectionist measures, particularly when he targets large contractors such as Boeing, who has lots of friend in the military-industrial complex, and in Congress.

    And I see the Trump voters as people who aren’t really interested in the usual Republican economic doctrine.

    Finally, I recall the time of immigrant hate in California. I think of it as the Pete Wilson era. There was major blowback for that, and California is now a supermajority D state. And what happens here often happens in the rest of the country 20 years later. Things are on schedule so far.

    I don’t have a crystal ball. I don’t know what’s going to happen. But I think we should let it happen and find out. We don’t need to throw some hail-mary to save the Republic. We do need to work on the crazy shit that people believe, though.

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    • Ditto to this, or I should say Megadittos, Rush, er, Jay!

      You see it already with the rumblings from the House about their priorities versus Trumps.

      And as a CA native, I saw up close and personal how the Republicans shat the bed here, not just with the Hispanic hate but obstruction and budget craziness where they repeatedly shut down the government, at one point forcing state workers to collect IOUs.

      Eventually the professional class, the small business people were the ones who got fed up with it.

      Medicare is popular, and people will vote for it; Obamacare is popular, even if people hate it by that name.

      I compare Trump to someone like Hugo Chavez, who was able to make the people feel good, but couldn’t deliver the goods; eventually people get tired of being fed applause lines and want you to actually get the boring business of governance done.

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  21. :Shrug: If the Dems get serious about it, then the GOP can vote down Garland a day before they leave.

    There, everyone would be happy because Garland got his vote and so forth.

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      • Because there’s a rule that once he’s lost he can’t be renominated?

        Voting him down rips away all of the “process” issues people are complaining about, and I doubt there’s enough time to renominate him.

        Personally I can’t think of a better way to resolve the tilt of the court than an election. And I can’t think of a worse way to resolve it than disenfranchising a third of the electorate.

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          • Roberts’ nomination was withdrawn and resubmitted because of paperwork issues after Rehnquist died. If memory serves, just that part of it, with everything “expedited”, took days, not the minutes they have and certainly not seconds.

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            • You’re talking about doing things fairly. This play is not fair, it does not pretend to be fair, it is not about qualification (though it’s obvious Garland is qualified). It’s about winning by any means necessary, nothing more.

              I’m convinced, though the discussion we’ve had on this board, that this would be an ultimately bad move for Democrats. That said, I can see the argument that politics is about winning, not about playing nice, not about maintaining claims to “legitimacy,” at at least no longer about adhering to norms and traditions. Under this view, politics is about prevailing, right now, period.

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              • All true, but if there’s no time to cross every “T” and dot every “I”, then there will be T’s and I’s which aren’t done… which means a lawsuit going to the SC on whether or not their new member is legit (although disenfranchising a third of the population should also do that).

                At that point the “fairest” result would be Garland reclusing himself and the SC ruling 8-0 that you can’t pull this sort of nonsense any more than you can have Poll Taxes or Jim Crow laws… which gives the Dems all the negative rep without the benefit.

                The least fair result would be the SC ruling 5-4 that it was fine but aka Bush-Gore that it was a one off, seriously damaging the legitimacy of the SC itself.

                I very much doubt the 8 Supremes would want their own legitimacy tarnished so harshly, so my expectation is we’d see something close to the former rather than the later. However it’d be interesting… it’d probably also hand the GOP+Trump a super majority and I’d really rather not see that.

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  22. I try to imagine what this would look like if every role was reversed. What would the GOP do? Maybe I’m being unfair, but I can’t help but think they’d try this. But they’d seek to justify it not by citing payback or saying, “We didn’t start it,” but by arguing that a duly elected President nominated a Justice who would have been favored by the candidate who garnered the majority of the popular vote… that in taking this unprecedented tack they were ENSURING the will of the people was honored. And… I think they’d be very convincing.

    Will the Dems do this? Probably not. In part because they could never make the case.

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  23. Well now, this is something I never would have thought of… If this is constitutional (and I assume it is, or why would we be talking here) they absolutely should do this. Comity? Comity be damned. The last refuge of a scoundrel and all that. If the can make this work then they should do it. If they can stand the political heat.

    The D’s have a tough row to hoe ’18, what with all the defending to do, and they have set the bar sooooo low with Trump that all he has to do in ’20 is not blow the world up, they might not get a shot at the SCOTUS ring in 6 odd years. Which, too me at least, means they should go for broke on this. Garland? Too milquetoast. Find a real firebrand, one to set the mood on that bench up there. Young, liberal as all get out, let someone make there mark on the court. Cause that is probably all that is going to happen for a while.

    Mitch McC pushed in all of his chips when he said NO to Garland. And that bet turned out good for him, even though it was close. And what with Kennedy and the RBG getting up there, there is going to be a bit of turnover in the next few. D’s should go for broke. Make it worth something.

    If it is legal, it is good. Full stop. I don’t care about D’s or R’s, I care about Senators and Justices and Presidents. All of which have their own powers, and need to use them. If you can shutdown the gov’t, stop any justice (or at time like this, promote any justice) veto a law, find a law unconstitutional, put whatever muscle you have to the task, then you shouldn’t be there. All the cries for comity and such are just people trying to put their thumbs on the scales. If you think it is worth any cost that you might have to pay, then make the bet, roll the bones. Live with the result.

    Make the constitution work. If the D’s don’t have the balls to do this, they don’t care about the people they say they represent.

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    • Which, too me at least, means they should go for broke on this. Garland? Too milquetoast. Find a real firebrand, one to set the mood on that bench up there.

      They are stuck with Garland unless Obama plays along.

      Obama would have to withdraw Garland, nominate Ashley Firebrand, and *THEN* the Democrats would have to pull this off.

      It’s not as simple as the Senate saying “nope, not Garland… we’re going to nominate our surprise choice”.

      Now… could the President withdraw Garland, nominate Firebrand that very morning?

      I don’t see why he couldn’t…

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      • I don’t think Obama would ever do any of this, but if he did, it would almost certainly be someone from previous short lists for the SCOTUS. He was able to select Garland within 30 days because he had previously been vetted and interviewed for the two previous vacancies.

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  24. Well written, Burt. As usual.

    I’m opposed to trying this. Attempting a parliamentary maneuver intended to deprive 33 states of some of their representation on an important vote even though those representatives are physically present just rubs me the wrong way. The side I favor lost at the national level — elections have consequences. Hopefully, one of those will be for the national Ds to realize, “We’ve been playing the game wrong, and have put ourselves in a position where winning requires the other side to screw up big time.” Big time as in a failed land war in Asia.

    One of the consequences will undoubtedly be that state governments will get to do more things the way they want. Things are going to suck — from my perspective — in Texas and Mississippi. I’m not overly afraid that my own state will do anything particularly stupid. I am afraid that the national Republicans will attempt to punish blue states the way they think red states have been punished. For example, it’s one thing to roll back some of the EPA’s recent clean-air rules. It’s an entirely different thing to roll back California’s exemption that allows that state to impose tougher-than-EPA rules.

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  25. Here’s another wrinkle: why would this maneuver be limited to judicial nominations? In 2018 the Democrats are defending far more seats than the Republicans, so the rump Senate used in this maneuver will include a large GOP majority. I’d rather not have them go on a supermarket spree-style frenzy of passing awful laws for Trump to sign.

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    • The GOP uses procedural tricks to achieve their political and policy goals; the Dems don’t use procedural tricks because they’re scared the GOP might use procedural tricks to achieve their political and policy goals.

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        • From WaPo:

          “The Senate did not use the reconciliaton process to pass the ACA. The act, comprising 906 pages, is the basic comprehensive substance of Obamacare. It was passed on a bill that was filibustered, and a supermajority vote of 60 was required to end that filibuster (by invoking cloture under Senate Rule 22). It was signed by the president on March 23, 2010, and became Public Law 111-148.

          A second bill, which was a reconciliation bill, was passed after that date to make a series of discrete budgetary changes in the ACA.”

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              • The WaPo article may be more “facty,” but the skit gets to the deep emotional truth at the heart of the American experience.

                I don’t know how much the process of passing the ACA influenced popular perceptions of the law itself, but at least the point was being made that majority views of legislators were being passed.

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            • It continues to infuriate me that we’ve all mostly accepted the BS notion that this was in any way illegitimate.

              Kennedy’s seat going to the GOP speaks for itself, as does needing to put tremendous pressure on Roberts so he’d rewrite the ACA to pass Constitutional muster.

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            • It’s a parliamentary manuever done dozens of times by both parties with little or no protestation by either party. Hell, I’m sure if I dug things up, I could see the GOP doing things this year like that, because it’s easier after the House & Senate make a negotiation to simply amend a bill than starting from scratch.

              It’s efficiency, which is terrible only when legislatures do it.

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              • Does that feel like a good form of argumentation?

                “I’m sure that if I looked for evidence, I’d find some.”

                It must.

                Anyway, I went here and clicked on some stuff and every single one that I picked at random said that its original name fit in one of two categories:

                1) Either introduced in the house as HR ####
                2) Or introduced in the senate as S ####

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      • Hell, the simple fact that some lefty pundits kicked this idea around for a day before deciding it was a bad idea is all the right will need in 2/4/6 years to justify the same thing. Didn’t they argue that the debt limit BS was justified because Obama threatened it once? That the garland blockade was justified because Biden mentioned something similar once.

        So thanks in advance OT.

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