jollyroger's picture

    No Senate quorum before 2019!

    Desperate times call for desperate measures.



    Fortune having delivered  us into the maw of Trump The Destroyer, she has also delivered the invalided John McCain, who may well be absent from the Senate for the duration.



    Pence can break a tie, but he does not count towards the 51 Senators required to do business.



    They may have to kidnap Manchin, McCaskill and Heitcamp,but it's a plan.


    Apparently, the quorum evaders will need to go to the mattresses, lest they suffer Packwood's fate...


    " On February 24, 1988, in an attempt to establish a quorum on a campaign finance reform bill, Capitol police carried Oregon Republican Senator Robert Packwood into the chamber feet first at 1:17 a.m."


    Somewhere in the midst of what you wrote is an actual, thoughtful plan.  It's lost, so let's try to find it together -

    1) Democrats have to hold their line in the face of the new nominee.  They need to pull one Republican NO vote.  Full stop.

    2) Democrats have to win the Senate.  Full stop.

    3) There is no three.  Unless we believe it's not only right but conceivable to deny every nominee until we get a Democratic president, we'll end up with someone Trump chooses.  Our best option is to have the least worst option on the Court.


    I hope the democrats do every thing they can to fight this. But there's virtually no chance they'll succeed. We'll have a 5 - 4 very conservative Supreme Court for years. I'm depressed. I feel beaten. We lost. They won.

    Your gonna have a 6-3 supreme court if ruth bader ginsberg dies.


    America is fucked theyre gonna ram some crazy mofo through.... even if ruth bader ginsberg lives (who obama begged to retire so he could appoint someone who isnt going to die) we would still have a hard right 5 votes versus 4. we are fucked.

    Unless we expand the # of Supreme Court justices a la FDR.

    And/or institute term limits.

    And/or increase Congressional representation to include DC and Puerto Rico.

    We need to look at this long-term, while not ignoring the necessity of now.

    I love the term limit idea but I’m not expecting that ever.  I guess I’m just hoping that we get a Dem President in 2020 and Thomas has a stroke on January 27th ( in honor of my birthday).  I also haven’t forgotten that our Chief Justice had a seizure some time ago. Gorsuch and Mr “you lie!” could get cancer. 

    Yes, I would like all of them to leave feet first.  But unlike the trump cult, I wouldn’t ever personally cause any harm.  

    To his everlasting credit, though, Kennedy voted to support the right of women to decide for themselves whether or not to carry a pregnancy to term and the rights of gays and lesbians. To this extent, Kennedy made an enormous contribution to the fundamental values of our nation. But now that he has stepped down and thus given Donald Trump and the Senate Republicans an opportunity to replace him with another archconservative justice, he has undermined much of the good he has done. This is especially disconcerting in light of the unconscionable behavior of Senator Mitch McConnell and Senate Republicans to block the confirmation of Chief Judge Merrick Garland in order to manipulate the ideological makeup of the Supreme Court. If for no other reason than that, Kennedy should not now have left the court and enabled the Republican right to gain absolute control over the highest court in the land.

    I was freaked out and thinking like you on first hearing the news. I was thinking back to online arguments with lefties back during the Bush vs. Kerry presidential race, where they were saying they don't like the choice,  there's little difference, and maybe they will just stay home and not vote. And I said you must never do that, it's not because who is president is so important, because it's actually not, the president doesn't have that much power, but the Supreme Court does and he appoints them.

    BUT then I realized: hold your horses, it's not clear it's time to get depressed yet. We got a lot more craziness to go. We can't predict what will happen. You first have to know who the nominee is.

    I ran through all the recent controversial Supreme Court nominations and see that this is so. Chances are great that with Trump nominating results will be crazy.

    Presidents, much less crazy ones, don't actually seem that able to pick Supreme Court nominees who fit their desires. They try, but they don't know how the guy or gal actually turns out.

    The reason that Kennedy was on the Supreme Court was because Reagan's first nominee, Bork got "borked." Read the wikipedia summary and you'll see that a lot of public activism helped that happen. And The vacant court seat Bork was nominated to eventually went to Judge Anthony Kennedy, who was unanimously approved by the Senate, 97–0.[35] Bork, unhappy with his treatment in the nomination process, resigned his appellate-court judgeship in 1988.[36] Reagan thought he was getting an adequate replacement  in Kennedy, but guess what, he wasn't.

    That's so common! All these guys and gals, seems like they don't turn out like the president nominating them thinks they will. All except Obama's and Bill Clinton's, because: Barack and Bill were lawyer scholars on topic. The rest of them, much less Trump, even with all kinds of help doing it, don't seem to be that good at picking someone who always ends up voting their ideal.

    Reviewing recent history, all of them, if controversial, the public actually has a lot of input. If Trump picks someone real wack, first the Congress is up for election at the very same time. Second, there's a Mueller report coming out! Third, as I said, you especially can't predict what happens at all in this time of change in our country. For example, we've got the changing attitude about the gun rights thing, with Parkland and Vegas and all, especially effective topic with swing voters. I've already seen Trump shout out a promise to fans that he's gonna pick someone strong on 2nd amendment. That's actually a very dangerous thing to do as far as helping GOP congresspersons win re-election, they're not gonna want to go there if that's an issue that gets raised   Then you've got things like #Metoo, another topic very effective with important swings like "white suburban females". Trump is so knee-jerk wack that he could nominate someone with abuse accusations in the past and we could end up with the Clarence Thomas/Anita Hill hearings allover again. Long Dong Silver and all. laugh

    Actually, it's probably smart to get afraid if he picks someone moderate, because that's the only way a nomination might go through without major upheaval at this point in time.

    I just don't think it's time yet to get depressed. We just can't predict what will happen. The more I think on it, the more I think Kennedy has timed what he's doing because he thinks it is exactly the right point in time to do it for the country, I suspect it is strategic and we can't understand his long term thinking on it yet, but one thing I am sure of is that he doesn't want someone the opposite of himself in his place. He may even be thinking of the effect on the Congressional elections, may be intending that.

    We'll see,but I think your post is missing some very big changes since Bork. Back then there were moderate republicans who weren't afraid of the base. Back then the filibuster was available to fight extreme judges.

    Trump doesn't really care about the Supreme Court nor does he care who he appoints. He only cares about pleasing his base. He's just going to go with the Heritage Foundation list. The HF has learned things during the Bork hearings too. No one on that list has done or said anything crazy. Most of them are respected intellectual very conservative judges. The HF is very good at what it does. The likelihood of one of their picks turning out to be a moderate is very small.

    McConnell is going to push this through fast, before the midterm elections. Trump's pick will be a respected conservative judge who has never made a ruling on abortion. The two theoretical pro choice republicans won't join democrats in blocking him, assuming the democrats stand together. An unlikely assumption as three democratic senators are up for election in red states.

    Even if by some miracle democrats are able to delay the vote until after the election the odds are not good that democrats will take the senate. Unless another miracle occurs the republicans will not lose the senate but will likely pick up seats. Democrats seem likely to take the house but that does nothing for Supreme Court nominations.

    Let's not sugar coat this. It will take a series of million to one unlikely chances to win this. The odds are a million to one against us. For all the issues I care about that the Supreme Court considers we're doomed. For years if not a couple of decades.

    It's just that I've done a couple threads of news now of stuff everyday along the lines of "who would have thought this would happen in a million years?" I've already learned not to rely so much on my old instincts.  The only sure thing is that there are no sure things right now....

    It sounds like you're trying to convince yourself as much as anyone else, arta, and it's appreciated ... but optimism may not be what's needed right now.

    True, it's just that I've never been one to cotton to being in the "riled up troops" category, I would just rather analyze. Rile away, I'll watch. Know it drives some passionate people crazy. To them, I say: sorry, but I'm old enough not to care that you think poorly of my type. So take it this way: I'm not trying to cheer anybody up here. I'm saying: this doesn't sound quite right to me, is all. And I may be wrong, just working on grasping the situation using other minds as well.

    Here's one thing that just struck me: going after children, even if brown foreigners, that's clearly, clearly currently a passionate uniter, not a divider, starting with Laura Bush's op-ed and continuing to this day with people like this guy: Regular guest says he won't appear on Fox networks again over immigration coverage 400 guest appearances on Fox, and he says he doesn't care where someone stands on immigration, he'll still sell his soul, doesn't bother him. But this one, this one is one step too far, and he's telling all his followers and friends on Facebook that, too.

    That's what a lot of many of the Supreme court issues can be played to be. Think 2nd amendment, that's a uniter right now, not a divider, it can be played as to: which minorities (and I don't mean racial, I mean special interests) in this nation do we really want to see protected? Constitution or not, everyone's got an opinion on that, ironically the majority can rule on that > what's one step too far for most everyone.

    Instinctively, I feel that part of the trouble here will come from that unlike most presidents, Trump does not even bother to pretend to present himself as representing all the people, just the opposite. And the Supremes address ironically so many issues that everyone can have an opinion on, real life daily issues of values. Ironically, at nomination time, though the Supreme judiciary is there to protect rights of minority interests according to the Constitution, these things can be played to a majority, one just has to dig in the nominee's record, and legal eagles do just that.


    Well arta, like you I think I do analysis too. I can be emotional but I think I'm pretty good at putting it aside and doing my analysis cold hearted. I'm not always right and I hope I'm wrong this time. We'll see.

    And the Supremes address ironically so many issues that everyone can have an opinion on, real life daily issues of values. Ironically, at nomination time, though the Supreme judiciary is there to protect rights of minority interests according to the Constitution, these things can be played to a majority, one just has to dig in the nominee's record, and legal eagles do just that.

    True, but you know what?  Every justice, (future or current) right or left, already knows how they will vote on any issue that comes before them.  It drives me crazy when they decline to answer question about their opinion on topics that aren’t already a part of their history “because it might prejudice them.”  

    BS. They don’t want their questioners to know how they will decide cases.

    Unclear whether Senator McCain will be physically capable of being present and would choose to be present for a confirmation vote.

    If he is not it is 50-49 if both parties vote along party lines.  No quorum.  There are 3 or 4 Republican senators who come to mind as possible supporters of fair play/no vote prior to the elections.  As well as several Democrats who will be targeted as candidates to flip. 

    There cannot be a confirmation vote prior to the elections.  Opponents of stolen US Supreme Court seats would appear to have a real chance to prevent the vote until after the November elections. 



    If the Democrats hold the line, it helps gut the argument that they are too weak to fight for our values.I want to see Jason Johnson proven wrong.

    I received a mass email from Sen. Tim Kaine, up for re-election this year from Virginia.  He is personally opposed to abortion but believes in respecting Roe v. Wade.  He isn't one of the first senators the GOP would work to try to flip on allowing a confirmation vote, but he wouldn't be the last, either.  As many surely observed during the last presidential campaign, where he fights, he is not the in-your-face, angry sort of fighter.  He is moderate by temperament.  At any rate, he didn't bat an eye.  He was very strong.  He's totally in support of no confirmation vote through the November elections, circulating a petition for signature on top of that.  

    Oh, well, no worries, then.  I didn't realize that a petition was being organized. I am vastly relieved.



    As to the case-in-chief when you say that there "cannot be a confirmation before the election" was that a prayer or an analysis of the time remaining until November?  If the former, right on.  If the latter, I disagree.

    Not the latter. More the former although I don't think of it as a prayer but as a collective project, of highest priority.

    Unfortunately, hoping this is wrong, this could be one of the fastest confirmations of a Supreme Court justice in history.  Not one Republican will step out of line (unless ill-McCain). The two women Republicans have voted for anti-choice judges every time.

    The justice Trump nominates will be a definitely non-center right wing zealot, and will give the usual "I cannot say how I would rule.....on cases that may come before the court....blah blah.....on questions about choice, money, civil rights...etc

    This will begin 20-30 years+ of culture wars, on civil rights and choice, "religious freedom" to hate, and the greasing of the palms in politics where money will rule.

    The GOP objective being to divide and eviscerate the majority left, distract from their looting of the Treasury and the safety net, for a even fuller organized crime assault on decency, compromise, with rampant political patronage.   

    Recently there was an article that forecast the "vote white" GOP rural low education bloc, combined with our slave state protecting obsolete Constitution, could keep GOP minority control of the federal government until 2036.

    Taking Congress in November would help, but if Americans want to preserve this democracy, they must be committed to get out and vote, vote out the GOP election after election. A doubtful prospect?? After the worst crash since 1929, Americans voted the GOP back in 2 years later.

    Any of us can imagine scenarios of ever-escalating disaster.  Perhaps this is a time when it is comforting to remind ourselves that none of us, including those who believe they can see their brass ring in sight, can know the future.  History is full of unexpected twists and turns. 

    It's uncomfortable, not knowing what will happen.  If we make the effort to preserve, restore, and extend our best values, we don't know whether we will succeed in the end.  (There is no "end", because no victory is final.  Nor is any defeat.  But that is another matter.)  If we do not make the effort, if we give up, if we talk ourselves into believing there is no way that we can prevail, surely we will fail.  And we will have failed ourselves and succeeding generations who, though they may not know it, are counting on us to step up at this moment. 

    To my way of thinking there is honor in making a full effort, come what may.  We must find a way.  There is enormous creativity, goodness and resolve in this country.  Who among those who have been on the sidelines will rise to the occasion in a national hour of need, with our liberties on the line?  No one can now know.    

    I like what Josh Marshall wrote at talkingpointsmemo yesterday, in his editor's blog post on the Kennedy announcement.  The last three paragraphs seem especially apt to keep in mind at this time:


    Coming off the brutal 2004 election, George Bush was reelected with his Republican majorities after an unexpected midterm election pick-up in 2002. There were numerous articles and even books explaining the Republicans’ “permanent majority,” a mix of wedge issues, money and geography which locked in a Republican majority something like forever. Two years later the entire Republican congressional party was shattered. Things change quickly – often dramatically and at the worst moment. I continue to believe that the Republican right is involved in an essentially defensive action, trying to lock in policy gains and anti-democratic obstacles to stave off an electorate which is growing and largely hostile to their views.

    That’s an analysis, a prediction. But predictions and analyses can be wrong. We don’t know the future. As an historian, I know we don’t even really know the past. I wrote this the day after President Trump’s election: “At such a moment I come back to a thought I’ve told family members at times of stress or grief. Optimism isn’t principally an analysis of present reality. It’s an ethic. It is not based on denial or rosy thinking. It is a moral posture toward the world we find ourselves in. If everything seems great, there’s no need for optimism. The river of good news just carries you along.”

    Our commitment to our values and to our country, which we express through political action, is an ethical commitment, not a read of the odds. The greater the crisis, the greater the national affliction, the more your country needs you. Our journalism, your activism, your commitment are simply more important today than they were yesterday. We can lie down. We can stand up. We can walk forward. For my part, I can’t think the future is on the side of the American right when the man who now embodies is it is so consistently unpopular. But I will walk forward regardless.


    Thanks for the positive take. Appreciated.

    Of course, one need not imagine disaster to witness it.

    Part of a comment I read:

    I feel for the young people of America most of all -- while the most advanced nations still strive to move ahead, the dinosaurs of the reactionary right are taking this country backwards. The damage will run deep and long after the Republican party leaders retire with the tax cut and enhanced wealth.... How grim that the pathetic souls in the GOP base, with their mindless loyalty to the worst President in modern history, have sabotaged the future of their own kids and grand-kids.......

    I come into contact with Conservatives on a daily basis. I am cordial, but I always realize they will turn away if my civil liberty is in jeopardy. 

     After the worst crash since 1929, Americans voted the GOP back in 2 years later.

    That's one way to spin it. But seems to me you are spinning yourself into depression unnecessarily by thinking about it that way.

    Pollyanna wants to point out that the more common way to spin that is to to see that it fit a longstanding historic pattern of  voters in midterm elections going for the opposing party of the president after a new president is installed. Especially if the new president is seen as a radical change from the last one.  And that this happens because the voters who come out in midterms are all about moderation via gridlock, and everyone else stays home.

    Will that happen again? Well it's looking pretty good, because those moderating-via-gridlock codgers will show up to do what they usually do, but this time they may be joined by a lot of people chomping at the bit to put the opposing party in control of Congress.

    Thanks Pollyanna..! Blue wave, inevitable, hopefully.

    Trumpkins were complaining (comments) today that Charles Blow was calling Trump bad things and using "hyperbole" to upset people.  The fact that their hero leads the planet in both areas escaped their notice.

    NYT Blow on elections today:

    Elections have consequences. Not voting has consequences. Falling for Russian propaganda has consequences. Voter suppression has consequences. Taking the absolutely ridiculous position that there would be little difference between Hillary Clinton and Donald Trump has consequences.

    My bad on this, on forgetting the Republicans in the Senate changed the rules during the Gorsuch nomination, deploying the "nuclear option" to make it a simple majority vote to end debate on SCOTUS nominations, instead of 60, as previously under the Senate rules.

    And Pence would be able to break a tie.  If all Republicans are present and vote to end debate, and then for confirmation, it's 51-49, so Democrats would need to hold all D's and flip 2 Republicans (if they flip only 1 on that scenario Pence's vote to confirm at 50-50 is decisive). 

    If McCain is not present and everyone else votes, it's a 50-49 party makeup, with Democrats needing to flip one Republican vote to defeat the nomination, 50-49. 

    Murkowski, Collins, and Flake are among the more promising possibilities to flip Republican votes.

    Someone please correct me if I'm still getting it wrong.      

    Flake is a hard right conservative that will support Trump's pick. Just because he hates Trump doesn't mean he'll pass up an opportunity to move the supreme court to the right.

    Well, we'll see, right?  He was gung-ho on getting Gorsuch confirmed.  A lot has happened since then.  He's said and done plenty of things since then to suggest that he views Trump as deeply menacing in many ways.  Surely he knows the Supreme Court may play a key role in checking executive overreach, or not.  There is nothing on his website as I write indicating a reaction to the Kennedy retirement and upcoming vacancy.  

    The wikipedia entry Appointment and confirmation to the Supreme Court of the United States/Confirmation is updated to include all recent Senate rules changes and seems pretty thorough about suggesting all the possible glitches that have happened and those that still could happen.

    What comes to mind after skimming that: I'm no expert.

    But one thing I do know is that a lot of lawyers in this country always seem to care a lot about the Supreme Court nominations. And then that there's all these lawyers and lawyers groups and lawyers lobbyists fighting this president at this time, they really really don't seem to like what he's doing to this country and the rule of law. I just suspect that the minority in the Senate is gong to get a lot of good free advice on all the things they might do, depending on the nominee. Including public advocacy to flip GOP incumbents who are up for re-election.

    If this is all not a very bumpy ride, that is what would surprise me. McConnell is talking like it's a gift from god and it's just gonna sail. How right has he been so far about anything? Even the tax bill was tough. He was gonna get health care reform, immigration reform etc., it was all gonna go hunky dory.  Just for one example, look at what the split between Freedom Caucus types and establishment and a wackadoodle executive has stymied their agenda. Now throw in a crucial Supreme Court nominee where the views on crucial issues like 2nd amendment rights, abortion, all kinds of "states rights" issues, etc. can be played.

    Interesting that the abortion issue is nowhere near 100% partisan (we just presume so because of the passionate activists and the party platforms?)

    Elected officials are almost perfectly sorted on abortion, but rank-and-file party members are not.

    About a third of Republicans are pro-choice and about a third of Democrats are pro-life.

    — Matthew Yglesias (@mattyglesias) June 28, 2018

    I couldn't decide whether this fit better on Ramona's last blog or this one - so I flipped an invisible coin and here is Eugene Robinson at WaPo:

    That is why there must be no meek acquiescence to Senate Majority Leader Mitch McConnell’s plan to quickly confirm Kennedy’s replacement. It doesn’t take a very long memory to recall how McConnell, using power in a way that would have made Machiavelli proud, robbed President Barack Obama of a Supreme Court appointment that was rightfully his. Democrats should be every bit as unyielding toward Trump, taking full advantage of the Senate’s arcane rules to delay and obstruct.

    Unless Trump nominates some total nut case who is unacceptable to some GOP senators, Democrats will almost surely lose this battle. But they must wage it nonetheless, if only to demonstrate that they can be as resolute and uncompromising as Republicans consistently are.

    Ok so, now both The Hill and Politico are reporting the general consensus that his pick has to pander to the concerns of Collins & Murkowski.

    And all I was basically saying in comments above is that he doesn't really operate that way, he doesn't care about what is politically smart or viable, he picks who he likes, who makes Trump look good and who cowtows to memes popular to his fans. I.E., he might pick someone who has a MeToo problem and not give a damn. (A reminder how much a minor thing like "the nanny problem" could torpoedo things in days of yore). And the whole thing blows up. Dems just got to wait and see who it is, whether there's something to cause a blowup over. It's got to be something that's a hot button issue where the majority really cares emotionally.

    Politico also has a piece suggesting 5 likely applicable hot button issues.

    1. Abortion

    2. Affirmative Action

    3. Voting rights & Partisan Gerrymandering

    4. Gay rights

    5. Death penalty

    p.s. part of the equation this time: a blowup would cause delay until election, and also, even if a controversial appt. was pushed through, that would affect elections.

    I think our best hope is the latter case.  I've done a 180 on the likely effect on the election of the pendency of a confirmation, especially with the added attention that a specific name will draw.


    If the goal is avoiding 50 years of Supreme Court tyranny, I think we do better to begin our court packing strategy now.  


    I, for one, welcome the coming abundance (15) of justices. 


    More Supreme Court trading cards.  (Imagine what a rookie John Paul Stephens would fetch.)





    Ok, Maggie Haberman has conveniently shared with us by re-tweeting, here's Miz Sanders telling us who Trump is reaching out to, otherwise known as outreach or bribery, I just hope Grassley, Collins, Murkowski, Manchin, Donnelly, and Heitkamp all remember he's a congenital liar:


    @POTUS team also talked w/ more than a dozen other Senators today as part of ongoing outreach to get views and advice from both sides of the aisle.

    aka: twisting arms and making empty promises.  Which just might work.

    Interesting guesses from a Never Trumper neo-con:


    1 There may not be 50 votes in Senate to confirm a plausibly "this means overruling of Roe" nominee.
    2 A Court focus should help Dems in NV Senate race, perhaps AZ & FL. Should help GOP a lot in MO, ND, MT, WV, TN, probably IN.
    3 Dems helped a bit in suburban House races.

    — Bill Kristol (@BillKristol) June 27, 2018

    edit to add a later tweet from him:

    I agree with the spirit of this. As an analytical matter, people are underestimating how much Dems can gum up the works in the Senate if they’re united on strategy, and especially if they can find one or two fellow traveling Republicans to join in or accept the gumming.

    — Bill Kristol (@BillKristol) June 28, 2018

    and that he retweeted this:


    Found this 2016 WaPo op-ed tweeted last night by Joe Scarborough., with his attached comment "There are no rules". I'm gonna paste the first half of it as "fair use", I'm pretty sure WaPo won't get upset by this special case:

    There no longer are any rules in the Supreme Court nomination process

    Republicans and Democrats who claim to be acting out of principles are being dishonest

    By Miguel A. Estrada and Benjamin Wittes, February 19, 2016

    Miguel A. Estrada is an attorney in Washington, D.C. Benjamin Wittes, a former Post editorial writer, is a senior fellow in governance studies at the Brookings Institution and editor in chief of Lawfare.

    Here’s a simple piece of advice for anyone confused by the partisan politics of replacing Justice Antonin Scalia: Assume that anyone who claims to be acting out of a pristine sense of civic principle is being dishonest.

    We have both argued for a world in which judicial nominees receive prompt hearings and up-and-down votes based solely on their objective qualifications — education, experience and temperament. But that has not been our world for at least two decades. The savvy citizen should recognize as much and heavily discount anyone who speaks in the language of principle about the rules or norms that do or should govern the treatment of either a judicial nominee or the president who sends that nominee to the Senate. As recent history demonstrates, the only rule that governs the confirmation process is the law of the jungle: There are no rules. There is no point in pretending otherwise, as much as many of us wish it were not so.

    We have come by this view with extreme reluctance. One of us was a judicial nominee who never got a vote from the Senate but who nonetheless publicly encouraged the Senate to support President Obama’s appointees, including an overwhelmingly qualified Supreme Court nominee of the opposite party. The other wrote editorials for The Post for many years decrying unreasonable Senate treatment of nominees of the Bill Clinton and George W. Bush administration alike and also wrote a book arguing for a restoration of norms of expeditious and fair consideration of nominees. Both of us believe that when presidents nominate qualified nominees, the Senate should confirm them, and that courts should be fully staffed at all times to dispense justice to the litigants who come before them.

    Rarely has either of us lost an argument more completely at the hands of the entire political culture than we have lost this one.

    Republicans and Democrats put the blame on the other for the complete abandonment of rules and norms in the judicial confirmation process. Both are being insincere — whitewashing their conduct over a long period of time while complaining bitterly about the very same conduct on the part of the other side. Both have chosen, in increments of one-upmanship, to replace a common law of judicial nominations that was based on certain norms with one based on power politics alone.

    Today, there is no principle and no norm in the judicial nominations process that either side would not violate itself and simultaneously demand the other side observe as a matter of decency and inter-branch comity [....]


    This is the both sides do it argument and it's both true and false. Both sides do it but the republicans are hard core aggressive about it. Anything the democrats do once the republicans will do dozens if not hundreds of times. I just don't have the energy right now but I could find the numbers of blocked nominations by the party dominating the senate with an opposing party president. Or the numbers of filibusters by republicans vs democrats. The differences are overwhelming. Yes both sides gerrymander but the republicans are aggressive about it in ways the democrats never are nor have been. Democrats really need to start playing by republican rules.

    Democrats really need to start playing by republican rules.


    Not so sure - think we need a new GOP version of "Never argue with an idiot. They will drag you down to their level and beat you with experience."

    Trump says he probably won't ask SCOTUS nominees if they'll overturn Roe v. Wade - 06/29/18 03:29 PM EDT.  And then Manchin warns Trump against picking court nominee who will overturn Roe v. Wade, 06/29/18 08:51 PM EDT. This story chronology makes total sense to me because most presidents lie about this, so with Trump you would just go with automatically assuming he means just the opposite!

    the first of many to come, I am sure, but by a good firm and then a good roundup by Levitz of honest analysis:

    Poll: Nearly 70 Percent of Voters Don’t Want Roe v. Wade Overturned

    By Eric Levitz @,  @EricLevitz, with charts

    [....] ​A new poll from the Kaiser Family Foundation finds that 67 percent of voters do not want Roe v. Wade overturned. Opposition is overwhelming among Democrats and independents. But, in another sign that the congressional Republicans do not actually represent the consensus views of their constituents, some 43 percent of GOP voters want Roe upheld (the percentage of Republican Congress members who’d be willing to espouse that position in public is in the single digits).

    What’s more, an analysis of Cooperative Congressional Elections Study data by the progressive think tank Data For Progress recently found that there is no state in the country where banning abortion in all circumstances has the support of even one-quarter of voters [.....]

    Prompted by your comment that most politicians lie about this. Picked up a copy yesterday of Brit political scientist David Runciman's 2008 book on hypocrisy in politicians, reissued this year with a new intro or postscript.  I did not get to it last night but it's an argument that hypocrisy in politicians is inevitable and that some kinds of hypocrisy are problematic and worth worrying about whereas other kinds are not and may be helpful because necessary.

    More on "the lie,"  he can easily lie on this one because the list he is using has already been vetted for that:

    They’re all against abortion - they’ve been screened by the Federalist Society - making this point moot.

    — Maggie Haberman (@maggieNYT) July 1, 2018


    Here's a report on Senate Dem talks on strategery (sic.) on this with reasons why they may end up changing their mind:

    As Trump Consolidates Power, Democrats Confront a Rebellion in Their Ranks

    By Jonathan Martin & Alexander Burns @, June 30

    [...] At a strategy session held over lunch last week, Senate Democrats settled on a careful strategy for the coming Supreme Court confirmation battle. They would drop their demands that Republicans not appoint a replacement for Mr. Kennedy until after the midterm elections, senators decided, and instead would highlight the threat to abortion rights and health care to try to mobilize opposition to Mr. Trump’s appointment.

    “I’m sure many of them believe we have the power to stop this,” Mr. Durbin said of the expectations his party’s enraged base for Democrats blocking the court pick. “But the grim reality is that we have some power but not the power to stop this.”

    But a few hours later, on the ground floor of the Hart Senate Office Building, nearly 600 women clad in suffragist white were arrested in a demonstration against the separation of migrant children from their parents — and they said they wanted their senators to do nothing less than lie down on the tracks to stop Mr. Trump’s nomination.

    “I want to see this Congress actually follow our lead and resist in a real way,” said Winnie Wong, one of the organizers of the sit-in. “This kind of resistance can create a blockade and stop what will be a fast-track appointment. Imagine a world where you had the chamber do a civil disobedience, what that would that look like.”

    With former President Barack Obama evincing little appetite to reclaim a leadership role and no clear 2020 presidential front-runner, Democrats lack a commanding figure to oversee strategy and help bridge the internal fissures in the party.

    And while relentless confrontation with the White House and noisy protests might animate the rising Democratic coalition, they will not lead to success at the polls if the party cannot harness the fury.

    “The key is translating these public demonstrations and marches into electoral activism and then government activism,” said Senator Sherrod Brown of Ohio, a Democrat [....]

    really not to toot my own horn, but I think it's like I said, they have to see what the nominee looks like and how people react before they can know strategy, have to be flexible until then?

    And in the end, shouldn't they be used to that with Trump by now? They have to be fleet of foot because he's so nuts. Actually, he does that to his own party, too.

    There's also this, which I just posted on the resignation news post

    The circumstances of Justice Kennedy’s resignation must be investigated by the Senate Judiciary Committee before any replacement is considered. The Constitution does not give Trump the power to use underhanded means to induce Supreme Court resignations

    and add to that a reminder that Mueller is supposedly to have a report ready in September...from which appropriate leaks could start much earlier if parties involved thought it the correct thing to do.

    Seems to me GOP is really under timeline pressure to get this done. I see Senate Dem thinking about letting him nominate someone controversial on like, abortion, a tactic of "delay a delay"? The longer the whole process, the better.

    Dunno..  Jush is convincing on the folly of trying to win the Senate back with the confirmation pending..



    OTOH, to concede the early nomination threatens to dispirit our own troops.


    Message: It sucks to lose the presidential election.

    Thanks for sharing that. I especially tend to trust the wisdom of the quoted Skopcol for such analysis, which Josh is doing there. Personally, she's a lefty, but she can put that aside and give true objective professional advice about political mechanics. While no one can be sure with this stuff, I think she's one of those that's pretty damn good at it.

    Skocpol makes very good points.  But at this point I think I agree with Josh on this.

    Maybe I'm just behind on the latest declarations of intentions by senators.  But it's unclear to me why there seems to be a belief that the Republicans will get their first choice through (their only chance prior to the election).  Is it beyond reach to believe that, with no McCain vote, there is at this point a possibility of a Collins (and maybe a Murkowski as well) no vote with Democrats able to hold their members defeating the nomination? 

    Agreed that if the dominant framing is that this is a vote on abortion, and the nomination is defeated it very possibly could tip close Senate elections against Democrats.  But this nomination is about abortion and many other critical matters as well. That really needs to come through during the debate.

    Skocpol wrote:

    The Dems must take at least the House and some state legislatures and Governorships this fall, and if they do not, the country not just the Court is lost, because of voter suppressions that will happen thereafter.

    I wish Skocpol had addressed the argument Josh makes about SCOTUS very possibly ending up ruling on Trump's fate, and about how that really presents a constitutional crisis.  I agree.  I think he's right about that.  I am left to wonder if Skocpol agrees or not.  

    Dems could win the House, lose the Senate, and pick up some state legislatures and Governorships, which Skocpol seems to think are the critical things that need to happen to save the country.  But if SCOTUS rules to permit Trump's assault on presidential accountability to the rule of law to stand, and likely rules in other ways as well which exacerbate or lock in the Republicans' ability to continue destroying our country, isn't that something much closer to the country being lost?  

    Thanks for pointing that out.

    It does sorta seem like the particular atrocities of the day will be fought out at the Supreme Court before any other fora rouse themselves to action. 


    OTOH, one may perhaps invest a court decision adverse to Trump with too much hope of potency.


    It, is, after all, only a supermajority empowered Senate that can actually deliver any effective check, in the end.

    Related segment from's "Sneak Peek" by J. Swan, July 1:

    4. Inside the Democratic strategy to oppose Trump's judge

    Democrats plan to make health care the central issue in their fight to oppose whomever Trump picks to replace Anthony Kennedy on the Supreme Court.

    • Here's Democratic leader Chuck Schumer framing the strategy on the Senate floor Wednesday: "This is the most important Supreme Court vacancy for this country in at least a generation. Nothing less than the fate of our health care system...[is] at stake."

    Democrats plan to keep hammering two arguments:

    1. That Kennedy's replacement will tip the court into deep social conservatism and will ultimately lead to abortion becoming illegal in America.
    2. That Kennedy's replacement will ultimately vote to overturn the Affordable Care Act, removing protections for people with pre-existing conditions.

    Why this matters: Democrats believe these arguments will resonate with voters whom polls show are already worried about their health care under Republican leadership. Democrats also think they'll resonate with the swing vote senators needed to confirm Kennedy's replacement — many of whom support abortion rights and voted against Trump's efforts to repeal the Affordable Care Act.

    • "Republicans had hoped they put a band aid on the self-inflicted wounds that came from health care repeal and gutting protections for people with pre-existing conditions," Democratic strategist Jesse Ferguson told me.
    • "Then, Donald Trump ripped the band-aide off with his lawsuit to overturn those protections and now the fight over his Supreme Court Justice will pick the scab."  

    Go deeper: [.....]

    John Roberts Will Probably Be The Supreme Court’s Next Swing Justice

    By  and  @, June 27

    extensive article with graphs, showing results of new median on the court's liberal-conservative spectrum based on much of Trump's shortlist being "to the right of Roberts".

    Note that they still have Clarence Thomas to the right of all candidates, and put a single candidate, Thomas Hardiman, to the left of John Roberts, but still to the right of Kennedy.

    Actually found helpful, even though from a conservative law prof.:

    My piece in the @weeklystandard about how to think about the impact of Kennedy's replacement on the Supreme Court.

    — Jack Goldsmith (@jacklgoldsmith) July 2, 2018


    [....] The impact of Kennedy’s replacement will also depend on what type of conservative he or she is. Some judicial conservatives are originalists, others are inclined to libertarianism, and others emphasize judicial restraint. These philosophies combine in different ways to cut in different directions in different contexts—which is why conservatives don’t always vote as a bloc. Even originalism can lead to different outcomes, as we saw this term when the conservative justices splintered on threeimportant questions of structural constitutional law that turned in part on analysis of originalist sources [....]

    The battle has begun:

    Great roundup as part of July 4 "Playbook" @ Politico by Jake Sherman, Anna Palmer & Daniel Lippmann:


    -- ANDREW RESTUCCIA with PRESIDENT TRUMP last night in White Sulphur Springs, West Virginia: “‘I think you’re going to be very impressed,’ Trump said during a dinner for U.S. troops at The Greenbrier resort here. He praised Supreme Court Justice Neil Gorsuch, his first pick for the high court, adding, ‘We hit a home run there and we’re going to hit a home run here.’ Trump interviewed three candidates for the job on Tuesday, bringing the total number of candidates he has interviewed to seven, according to the White House.”

    -- KAVANAUGH IS THE LEADING CANDIDATE, PER NYT’S ADAM LIPTAK: “[A]ccording to a person close to the president, Judge Kavanaugh, who has served 12 years on the United States Court of Appeals for the District of Columbia Circuit, is the leading candidate in the president’s mind, followed by Judge [Amy Coney] Barrett and then Judge [Raymond] Kethledge. Mr. Trump believes Judge Kavanaugh has been on the bench long enough to give the president a sense of where he stands on various issues and that Judge Barrett is fairly young and could use more judicial experience. The administration might want to keep her in reserve should Justice Ruth Bader Ginsburg, 85, leave the court.”

    -- WAPO’S BOB COSTA and JOSH DAWSEY: “Leading contender to be Trump’s Supreme Court pick faces questions from social conservatives”: “An intensifying debate over Judge Brett M. Kavanaugh, a front-runner in President Trump’s search for a Supreme Court nominee, gripped Republicans on Tuesday, with conservative critics highlighting past rulings and his links to GOP leaders while his allies — including inside the White House — forcefully defended him.

    “The sparring over Kavanaugh, one of four federal appeals court judges who met with the president Monday, underscored the challenges facing Trump as he aims to pick a successor to retiring Justice Anthony M. Kennedy by his own July 9 deadline.

    “Even as Trump mulls a shortlist that has been carefully cultivated by influential Republican lawyers, frictions in the conservative legal community and on Capitol Hill threaten to disrupt the search process. The political moment for Trump was fragile as a president devoted to his base weighed what a Kavanaugh selection could mean for him, unfolding amid a flurry of op-eds and phone calls praising the 53-year-old judge as well as a clamor from those who see him as out of step on health care and abortion, or too tied to George W. Bush’s White House.

    “‘You hear the rumbling because if you’ve been part of the establishment for a long time, you’re suspect,’ veteran conservative organizer Richard Viguerie said in an interview. ‘Kavanaugh carries that baggage.’”

    -- AP’s Catherine Lucey, Ken Thomas and Lisa Mascaro: “As Trump weighs his options, he has heard from Sen. Rand Paul, R-Ky., who has expressed reservations about one top potential nominee, Brett Kavanaugh, according to a person familiar with the call but not authorized to publicly disclose details of it.”

    -- @maggieNYT: “COTTON spoke with Trump earlier [Tuesday] and suggested there might be better jurists than Kavanaugh from a legal standpoint, per person briefed on call”.

    -- @costareports: “End of day tidbits from inside GOP... -Spence Abraham a key Kethledge backer -Rick Santorum making calls to boost Hardiman -Bill Bennett talking up Judge Allison Eid -McConnell World still pushing Thapar -Jim Bopp sent Trump a letter w/ concerns about Kav.”

    DETROIT NEWS: “Michigan’s Kethledge on Trump’s short list for Supreme Court”

    JEN HABERKORN: “New Supreme Court justice could weigh in on abortion quickly”

    edit to add: relocated to "There's So Much You Don't Know About Brett Kavanaugh", artappraiser, as that thread has other comments specific to Kavanaugh

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