Reducing the politicization of the Supreme Court

[_cinepro]

One option that the guest offered as his preferred change (minute 3:20) was to require a 2/3 confirming vote in the Senate for the same reasons I had argued for the codification of the filibuster rule.

How would you mitigate the risk of a party just refusing to confirm a nominee? After the Garland situation, what if they just decide they aren't going to confirm anyone that is nominated by the other party, say, in the last two years of a Presidential term?

[_honorentheos]

One option that the guest offered as his preferred change (minute 3:20) was to require a 2/3 confirming vote in the Senate for the same reasons I had argued for the codification of the filibuster rule.

How would you mitigate the risk of a party just refusing to confirm a nominee? After the Garland situation, what if they just decide they aren't going to confirm anyone that is nominated by the other party, say, in the last two years of a Presidential term?

If you look at Garland, the issue wasn't that he couldn't get the votes but that a small minority of the Republican leadership refused to hold confirmation hearings. I agree with Bonventre in the radio program I linked that Garland represented a candidate who was not Obama's ideal liberal candidate but someone everyone could live with. McConnell just saw an opportunity to stop a good candidate from getting confirmed on the chance they won the Presidency and could get a truly conservative justice instead. It worked. As I noted up thread, the amendment to require a 2/3 vote should include the requirement confirmation hearings be held within a given timeframe from the President's nomination. Forcing hearings be held and a 2/3 majority seems like the way to a healthy, even tempered apolitical Supreme Court.

[_EAllusion]

I very much doubt that Garland could get the votes. Republicans avoided the somewhat greater political pain of having to cast a no vote by denying the hearing in the first place, but all signs point to Republicans bloc voting him down with ~ two cross-overs. There's no chance in hell he was going to get to 66 votes.

Raising to a two thirds majority threshold without having a plan to deal with partisan vetoing almost guarantees in the current environment nominees consistently being shot down until a party can get to near or over that threshold on their own when they control the Presidency.

[_subgenius]

wonder if the mid-terms yield a blue wave, will the Democrats take a demand for Trump's tax returns all the way to Supreme Court.....

;)

[_honorentheos]

I very much doubt that Garland could get the votes. Republicans avoided the somewhat greater political pain of having to cast a no vote by denying the hearing in the first place, but all signs point to Republicans bloc voting him down with ~ two cross-overs. There's no chance in hell he was going to get to 66 votes.

Raising to a two thirds majority threshold without having a plan to deal with partisan vetoing almost guarantees in the current environment nominees consistently being shot down until a party can get to near or over that threshold on their own when they control the Presidency.

The nihilism of the Grover Norquist brand of conservatives may use such a change to strangle the courts through attrition. Supposing the majority of Americans and their reps buy into such a worldview we are already left with nihilism as the only remaining principle of governance. I suppose it's possible that is the path we'd end up going down but I don't think it would be inevitable.

As to Garland, I guess we'll never know. I sincerely doubt that were his nomination to have made it to the floor he wouldn't have gotten the votes. That the professor from Albany seems to share this view is a point in its favor.

[_EAllusion]

wonder if the mid-terms yield a blue wave, will the Democrats take a demand for Trump's tax returns all the way to Supreme Court.....

;)

I know Newt suggested just that recently; hence your post, but it doesn't make a lot of sense. They have the statutory and constitutional authority to do that. There's no plausible legal theory that can deny them that power given that there's legitimate legislative purpose in seeing the returns. If the 5 conservative justices tried to stop that, it would be a full-blown constitutional crisis. I doubt Roberts would be a fan of that, but I could be wrong.

[_EAllusion]

I very much doubt that Garland could get the votes. Republicans avoided the somewhat greater political pain of having to cast a no vote by denying the hearing in the first place, but all signs point to Republicans bloc voting him down with ~ two cross-overs. There's no chance in hell he was going to get to 66 votes.

Raising to a two thirds majority threshold without having a plan to deal with partisan vetoing almost guarantees in the current environment nominees consistently being shot down until a party can get to near or over that threshold on their own when they control the Presidency.

The nihilism of the Grover Norquist brand of conservatives may use such a change to strangle the courts through attrition. Supposing the majority of Americans and their reps buy into such a worldview we are already left with nihilism as the only remaining principle of governance. I suppose it's possible that is the path we'd end up going down but I don't think it would be inevitable.

As to Garland, I guess we'll never know. I sincerely doubt that were his nomination to have made it to the floor he wouldn't have gotten the votes. That the professor from Albany seems to share this view is a point in its favor.

Prominent Republicans were pledging to deny Clinton a chance to confirm a Supreme Court justice should she be elected with no internal pushback. I think you misread the mood of the party considerably if you think there was any appetite for confirming Garland among the rank and file.

If a Democrat wins the presidency in 2020, but Republicans retain the Senate, I'm not sure that Democratic president gets more than a handful of federal judicial appointments through. Republicans are laser-focused on taking over the courts with partisans and ideologues. They will game the system to make that happen. They're succeeding.

[_honorentheos]

We've disagreed before on this, but I continue to be concerned that the political science wisdom isn't completely updated for the potential scenario of:

1 - The Trump faithful and forgotten America view the current overstimulated economy as proof Trump has taken the governor off of America

2 - Basic economics tells us that we're heading for a reckoning in the same way someone living large on credit card debt inevitably can't outrun their collectors

3 - It happens in the wake of the Democrats taking the House and running interference against Trump.

4 - Trump uses his propaganda branch, Twitter bully pulpit, and a complicit traditional media who can't help but report in ways that amplify rather than illuminate on what Trump is saying to successfully paint the Democratic obstruction as what tripped the economy up so the bills could come due

5 - We go into the 2020 campaign with what is traditionally lethal economic conditions for the incumbent party and President with the script flipped. Voter turnout ends up hanging not on how the average American feels about the condition of their pocket book but rather on who they genuinely believe is to blame for things cooling off.

All of that is to say I'm not sure we'll find out how realist your scenario is, anyway.

So given the choice, I'm of course going to let my biases go with the expert professor who agrees with me. It's human nature. I think Garland was a far more palatable nominee than you paint him to have been. Had the nomination process not been hijacked, I think it's very reasonable to see him as the kind of candidate a new amendment forcing super majority support might see building up the court instead of the polemic ping pong candidates we have now.