“Senate Minority Leader Chuck Schumer is widely reported to have told his Democratic colleagues on Saturday that “nothing is off the table for next year” if Republicans confirm a Supreme Court nominee in this Congress. He means this as a threat that Democrats will break the filibuster and pack the Court with more Justices in 2021 if they take control of the Senate in November’s election.
So what else is new? Democrats have a long history of breaking procedural norms on judges. While packing the Court would be their most radical decision to date, it would fit their escalating pattern. Let’s review the modern historical lowlights to see which party has really been the political norm-breaker…
…What Republicans should do is let the voters know about the Democratic filibuster and court-packing plans, and make them a campaign issue. Democratic Senators and candidates should have to declare themselves not merely on Mr. Trump’s nominee but on the filibuster and court-packing that Mr. Schumer has now told the country will be on the table.“
As this statistic forwarded by Balls Cotton confirms, the only ones playing fast and loose with the truth…
…are those on the left side of the aisle, a fact Jim Geraghty reinforces in a recent edition of his Morning Jolt:
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
It doesn’t say anything about how close the vacancy is to Election Day. It doesn’t say anything about whether the Senate has to hold hearings about the nominee. It doesn’t say anything aboutwhether the Senate has to vote on that nominee; a refusal to vote on the nomination, as occurred with Merrick Garland, is a de facto rejection. It doesn’t say anything about whether the Senate can vote in a lame duck session.
This means President Trump can nominate anyone he likes up until noon on January 20, 2021, if he isn’t reelected. The Senate can choose to hold a vote on that nominee anytime it likes. Or it can choose not to hold a vote on that nominee. If the Democrats win a majority of the seats in the Senate, they take over on January 3, 2021. If the Senate is a 50-50 split and Joe Biden wins the presidency, then Mike Pence breaks ties up until January 20, and then Kamala Harris breaks ties in the afternoon.
In case you’re thinking about the old “leave town and refuse to come back to deny the opposition a quorum” trick,the Constitution requires the U.S. Senate to have 51 senators present to hold a vote. If all 47 Democrats and Democrat-aligned independents leave town, the 53 Republicans present can vote to confirm anyone they like — as well as pass any legislation they like. The filibuster is no longer in effect in these circumstances. In 2013, Senate Democrats led by Harry Reid nuked the filibuster for judicial nominees except the Supreme Court; in 2017, Senate Republicans led by Mitch McConnell followed suit and nuked the filibuster for Supreme Court nominees.
In short, if the president’s party has 50 votes in support of a nominee, the nominee will be confirmed…”
If you doubt Jim Geraghty, perhaps you’ll trust the Hodge Twins:
And in a follow-up to earlier comments expressing our disagreement with those lauding Ruth Ginsburg’s purported judicial “accomplishments”, in an absolute must-read commentary which deserves inclusion in full absent any editing or added emphasis, NRO‘s Kevin Williamson insightfully observes…
Ruth Bader Ginsburg did a great many interesting and impressive things in her life, but she never did the one thing she probably really should have done: run for office. Ruth Bader Ginsburg wasn’t an associate justice of the Supreme Court — not really: She was a legislator in judicial drag.
You need not take my word on this: Ask her admirers. “Ruth Bader Ginsburg had a vision for America,” Linda Hirshman argues in the Washington Post. What was her vision? “To make America fairer, to make justice bigger.” That is not a job for a judge — that is a job for a legislator. The job of making law properly belongs to — some people find this part hard to handle — lawmakers. Making law is not the job of the judge. The job of the judge is to see that the law is followed and applied in a given case. It does not matter if the law is unfair or if the law is unjust — that is not the judge’s concern. If you have a vision for America, and desire to make the law more fair or more just, then there is a place for you: Congress. That is where the laws are made.
This distinction is an important one. As you may have noticed over the course of the summer, Americansdo not agree on everything. Some of us have ideas about what is good, decent, fair, just, wise, intelligent, prudent, and necessary that are radically different from the ideas other Americans have about what is good, decent, fair, just, wise, intelligent, prudent, and necessary. Democracy is not good for very much, but democratic institutions are how we settle those disagreements. Even the antidemocratic elements of U.S. government, such as the Bill of Rights, which put certain questions beyond the reach of mere temporary majorities, came out of democratic institutions and were implemented through a democratic process. It is from that that they derive their legitimacy. Democracy has its shortcomings — mostly rooted in the fact that human beings are universally fallen and in the majority savage — but the alternative is bonking each other over the head over every disagreement.
Put another way, the alternative is might makes right — which is exactly the kind of “jurisprudence” Justice Ginsburg and others of her kind have long practiced. There isn’t a goddamned word about abortion or gay rights in the Constitution, and it is absurd to think that such rights had been hiding there, lurking in the ol’ penumbras, since the 18th flippin’ century, waiting to be discovered by a committee of progressive lawyers who somehow see the “real” Constitution that went completely undetected by the men who wrote and ratified the document we actually have. That should be obvious even to people who support abortion or gay rights or other things that have been magically discovered in the Constitution. For the New York Times, Justice Ginsburg was a “feminist icon.” And she was — but it was not her job to be a feminist icon or to impose feminist ideology — or any other ideology — on the law and on the American public, substituting her own desires and preferences for those that are the result of the actual democratic process, daft as it often is.
Justice Ginsburg’s using her position to try to impose a feminist vision on federal policy ought to be recognized for what it was: an abuse of power. If you want to rewrite the law along feminist lines, that’s a perfectly honorable project — run for Congress.
The real fissure running through the Supreme Court is not between so-called liberals and notional conservatives, but between those who believe that judges are superlegislators empowered to impose their own vision on society and those who believe that judges are constrained by what the law actually says. The latter is the position of the Federalist Society and many lawyers associated with it, and that this position — that the law says what it says, not what people with power wish for it to say — should be controversial is an excellent indicator of why faith in our institutions has eroded so deeply. “If Republicans give Ruth Bader Ginsburg’s seat to some Federalist Society fanatic, Democrats should pack the court,” reads the line over Michelle Goldberg’s New York Times column. Read that and ask yourself who the fanatic really is.
(And: Whose seat?)
This should be obvious enough even to people who share Ginsburg’s ideology and political preferences. Maybe you think that the federal law should enshrine an unassailable right to abortion, or that the Bill of Rights shouldn’t protect the right to keep and bear arms as broadly and explicitly as it does. Many people would agree with you, and there are reasonable if erroneous good-faith arguments for those positions. But that is not what the law actually says. So, take it to the voters. In the case of abortion, that would have meant a state-by-state fight in the legislatures, which probably would have resulted in an abortion regime that is neither as permissive as the one we have nor as restrictive as abortion opponents would like, i.e., one that more closely resembles the actual position of the American electorate. (A large majority of Americans believe that abortion should be legal in the first trimester, and even larger majorities believe it should be restricted in the second and third trimesters.) In the case of gun control, proceeding legitimately would mean repealing the Second Amendment in order to impose the restrictions that progressives want but that are prohibited by the Bill of Rights. Yes, both of those would be long, hard, ugly, and frustrating fights that would almost certainly leave both sides partly unsatisfied — i.e., democracy.
It is, of course, much more tempting to get five allies on the Supreme Court to pretend that what you want is already mandated in the law, waiting to be discovered. And that was Justice Ginsburg’s specialty. Her most famous decision, outlawing the Virginia Military Institute’s single-sex admissions policy, was exactly the kind of thing you would expect from a “feminist icon” but shoddy — indeed, preposterous — as law. As Justice Antonin Scalia notes in his scathing dissent in the VMI case, other publicly funded military academies had changed their admissions policies, “not by court decree, but because the people, through their elected representatives, decreed a change.” What Justice Ginsburg was engaged in by inventing a prohibition on single-sex military academies was “not the interpretation of a Constitution, but the creation of one.”
Maybe Ginsburg was right to believe what she believed. That is irrelevant. The question is not whether VMI should have been admitting women, but whether the Constitution prohibited VMI’s policies and empowered activists such as Justice Ginsburg to replace those policies with others more to the liking of the nation’s progressive lawyers. It didn’t and doesn’t. Neither the text nor the history nor practice justified Justice Ginsburg’s decision — only her own sense of morality did. Her opinion is not legal reasoning — it is legal decoration, reverse-engineered and fitted to the decision she was committing to making for political rather than legal reasons.
Oh, but everything is political! they’ll say. I do not believe that judges are incapable of actually doing their jobs even if that means following the law to results other than the ones they would prefer — Justice Scalia’s account of the flag-burning issue is one example showing that it can be done the right way — but doing so would mean trying to do that job rather than treating the federal bench as a stage for score-settling, advantage-seeking, and constituent-servicing. If you don’t believe that judges should be constrained by the law — that power is power is power and that’s that — then you don’t have much of an argument against Donald Trump and Mitch McConnell filling this seat, which is not “Ginsburg’s seat.” And unlike Justice Ginsburg, who made up the Constitution as she went along, in this case Trump and Senate Republicans would be acting within their plain constitutional powers. In contrast to Ruth Bader Ginsburg, feminist icon, they would be doing their jobs.
The timing of Ginsburg’s death is a political inconvenience for Democrats — them’s the breaks. Trying to convert this into a question of principle is silly and dishonest. Yes, lots of Republicans said last time around that we shouldn’t confirm a justice right before an election. Lots of Democrats said last time round that we should. Handing out indictments for hypocrisy in Washington is like writing up people in New Orleans at Mardi Gras for public intoxication. Nobody doubts that the charge is a valid one, but, please, spare us the shock and sanctimony.
And after the slandering of Robert Bork, Clarence Thomas, and Brett Kavanaugh, arguing that Republicans should decline to move forward on the nomination for comity’s sake is laughable. Nobody believes for one second that if President Hillary Clinton were struggling toward an uncertain reelection campaign and Senate majority leader Chuck Schumer had the chance to confirm a new Supreme Court justice of her choosing that the Democrats would hesitate for a second. Nor have they ever shown themselves interested in replacing “conservative” justices — meaning those who are not open partisan campaigners on the model of Ginsburg — with conservatives or moderates in the name of ideological balance. The Democrats put left-wing activists on the Court when they get the chance, even if, like Elena Kagan, they have to lie their way through their confirmations to get there. Democratic complaints about political hardball after the outrageous campaign of fantastical fiction and slander directed at Kavanaugh, the anti-Catholic hatred directed at Amy Coney Barrett by Senator Dianne Feinstein (D., Calif.), etc., are beneath contempt. So is threatening to create a constitutional crisis through a Court-packing scheme if a Democratic president and Senate are elected, threatening (more) riots and (further) arson, and other attempts at extortion.
On the matter of the Court-packing endorsed by Michelle Goldberg et al., Democrats should be careful about the precedents they set. Republicans may learn slowly, but they learn. Democrats spent generations engaged in partisan gerrymandering and then suddenly got religion on that subject when Republicans got good at it. They didn’t think their slander of Robert Bork and the politicization of the nomination process would come back to bite them, but it did. Mitch McConnell believed the politics were on his side, and he was right. A Democratic Senate might reorganize the federal courts in a way that gives their party a momentary advantage — which is banana-republic stuff, but that is what Michelle Goldberg of the Times advocates, and she is not alone — but there will be a Republican majority again. There’s one now. Is that a weapon you want to put in Mitch McConnell’s hand? In Donald Trump’s hand? Because the genie doesn’t go back into the bottle.
Justice Ginsburg could have retired some time ago — and probably should have. But she believed in 2016 that Hillary Rodham Clinton was going to win the election, and so she held on. That was a political miscalculation. But that happens from time to time. Dwight Eisenhower was asked about the greatest regrets of his time as president, and he answered: “I have made two mistakes, and they are both sitting on the Supreme Court.”
Ginsburg’s legacy is not a body of legal opinions but a deformed and disfigured judiciary, one in which the American people have — with good reason — lost some measure of faith. Setting that right will be the work of a generation. And that work begins with understanding that a judge’s concern is not justice or fairness or progress but the law, and that people who want to change the law should run for office.
The alternative is not a panel of philosopher kings but the “nine-headed Caesar” that Justice Scalia warned us about.
To which we can only add the heartiest “AMEN!!!”, along with…
Since we’re on the subject of commentaries deserving of the highest accolades, Geoffrey Griffith forwarded the following from American Thinker in which former Navy JAG Don Brown asks and answers…
“If they get a fair trial, aquestionable proposition at best, Minneapolis police officers charged with murdering George Floyd should be acquitted. Let’s consider new, undisputed evidence, beyond the initial bystander’s video that we’ve all seen, to understand why.
On Memorial Day, around 8 PM, Minneapolis Police are called to a local convenience store. Two suspects passed a fake $20 bill to buy cigarettes. When police arrived, the shop manager pointed across the street, where three suspects sat in a parked vehicle. George Floyd sat behind the wheel.
When the officers crossed the street to investigate, two other suspects, another man, and a woman, both black, stepped from the car and politely cooperated.
But George argued and disobeyed ten separate commands from officers to keep his hands up…
…Sadly, George Floyd killed himself.“
As reader Keith Calcote noted of Brown’s piece:
“This is good. But the question is not“Who killed George Floyd?”; The evidence at trial will clearly reveal the answer. The question is, will a Minneapolis jury have the courageto vote “not guilty” knowing it will expose them and their families to the Antifa mob and all that entails?“
Here’s the juice: point well taken, for on this question rests the future of American jurisprudence, not to mention the rule of law versus mob rule, an issue theCity of Louisville is preparing to grapple with as we write.
Speaking of self-inflicted damage, courtesy of the lovely Shannon, the U.K.’s Daily Mail relates how…
“New Yorkers sent a blunt message to their governor and mayor this weekend – by painting ‘F*** Cuomo and de Blasio‘ in giant letters down a Brooklyn street. The offensive graffiti appeared at around 1am on Saturday morning and stretched for almost an entire city block in a style similar to city-endorsed projects supporting the Black Lives Matter.
Earlier this summer NYC mayor Bill de Blasio approved BLM street murals at five city locations – which fast became a target for vandalism. But while the city protected the official murals, the latest painting was covered upby the Dept. of Transportation in less than 24 hours.
The graffiti came amid criticism of Governor Cuomo and Mayor de Blasio over their leadership during the coronavirus pandemic, with ongoing restrictions on gatherings and indoor dining leaving many New York businesses devastated. (Not to mention thousands of seniors DEAD!!!)The city has also seen a surge in crime in 2020, with the murder rate soaring by 27 percent and gang violence rising by more than 50 percent…”
Billy Baldwin might well have been addressing Cuomo and de Blasio in this scene from Backdraft:
Like Marmalard and Neidermeyer, they’re…
Which brings us, appropriately enough, to The Lighter Side:
Then there’s these from Balls Cotton…
…along with two from the lovely Shannon…
…and four more from James Nichols:
Finally, we’ll call it a day with this string from Ed Hickey…
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