Ethics Review Of “Supreme Court Vacancy Theater”

Court vacancy

The short review would be “Yecchh.”

The reason that the earlier Ethics Alarms post about the death of Justice Scalia expressed the wish that President Obama on his own declare that he would defer the almost certainly futile appointment of a successor to the tender care of the next President was precisely because it was obvious that any other course was just going to create more ugly partisan name-calling and hypocrisy, accomplishing nothing positive and wasting a lot of energy and time. I also knew that this most divisive of POTUS’s would no more do that than he would deliver his next speech in a duck voice. Thus we have the theater, with people who should know better acting like the Republican Senate’s announcement that it would not be voting on President Obama’s nominee, should he make one, is some  kind of gross breach of duty and ethics, and people who don’t know better acting as if being one Justice short is some kind of Armageddon. Neither is true.

Nor is there any reasonably similar set of circumstances and conditions that makes the GOP’s entirely political decision, and Obama’s entirely political decision to test it, some kind of breach of precedent. There is no precedent—not with these factors in play:

A Democratic President with both Houses controlled by the Republicans

An ideologically and evenly divided Court, with the new Justice potentially having a momentous and nation-changing effect on the determination of many looming cases

An unusually partisan and ideological President who has proven unwilling and unable to seek legitimate input from the opposing party, and who, in fact, has been personally and bitterly insulting toward it

A rebellion against the “establishment” in both parties, from the extreme reaches of both parties, on the grounds that neither is extreme or combative enough

A lame duck, not especially popular President and an approaching national election that is currently being molded by unpredictable personalities and events, and is likely to be hotly contested..

The Supreme Court unusually central to the government of the country.

The vacancy on the Court being created by the death of one of the Court’s most influential, ideological and powerful members.

A degree of political division in the public not experienced since the Civil War.

These are all material factors, made more material in some cases because of the other factors. Thus accusations that the Republican have engaged in some kind of grand, historical crime against democracy is, to the extent the accusers believe it, crap, and to the extent that they don’t, ignorant.

The Republican position is politics, no more, no less. It is not dirty politics, unethical politics or illegal politics. It is a measure with the clear design of increasing the chances of Republicans prevailing in the policy and social debates currently facing the nation, and in the view of Republicans, in the best interests of the nation. As for the Democrats,

1. They would, in all likelihood, do the exact same thing if the positions of the parties were reversed, and thus their current outrage is either manufactured, dishonest, stupid, or hypocritical.

2. That too is politics, but of the “let’s fool most of the people one more time” variety. it is not ethical to declare conduct un-American and wrong when you know damn well that it is exactly what you would do. That is the current Democratic position, being aped by the mainstream media.

The ignorance of the public regarding just about everything involved is one reason the party’s are tempted to misrepresent such situations. I thought about linking to a bunch of authorities and historical notes, but I’m tired and depressed, and this debate isn’t helping my mood any. You can find them easily, but take my word for it:

  • Having eight justices rather than nine does not cripple the court.
  • The Court had only 8 for a year shortly after World War II, and that period is not usually regarded as a time of national crisis.
  • 5-4 decisions make up about 20% of recent court decisions, meaning that Scalia’s absence won’t make as much difference, at least in the final voting, as the news media would have us believe.

Obama’s decision to appoint someone, knowing that he or she probably will be shelved is also political. It will give Democrats a campaign issue (they hope). If he appoints some controversial judge who is also a minority, Democrats will be able to use it as a wedge with various minority constituencies, even though the race, gender, and ethnicity of the nominee ought to be irrelevant. Never mind—group identification and quotas over quality is the current obsession of the Democratic party.

The interesting ethics question: if he makes the appointment, not to get a justice on the court but to create political and societal divisions that will assist Democrats in the election by having the choice languish, would that be ethical?

It is per se unethical to use a Supreme Court appointment for any purpose other than to strengthen the Supreme Court, in the view of the President making the appointment. To take a ridiculous example, if it could be shown that the President felt that he could attract Trump  voters by forcing Republicans to reject a drooling, racist, intemperate idiot for the court and thus nominated one, that would be wrong. The Supreme Court is too important for these kinds of games, and no, what the GOP is currently doing is not a game.

It is also unethical for Obama to misrepresent the Constitution, which he is doing. (How he gets away with still being called a “constitutional scholar” when he has been publicly dead wrong about the document so frequently is a miracle.) From the Post:

Obama told senators he has a constitutional duty to nominate a new justice after Saturday’s death of conservative Justice Antonin Scalia and reminded them of their constitutional obligation to “do their job” and vote to approve or reject his nominee….“I’m amused when I hear people who claim to be strict interpreters of the Constitution suddenly reading into it a whole series of provisions that are not there,” Obama said. “The Constitution is pretty clear about what is supposed to happen now.”

Yup. And what is pretty clear is that the Senate has no Constitutional obligation to approve or vote on the nomination at all. Writes Professor Illya Somin at the Volokh Conspiracy today:

The Constitution is indeed clear on this issue, but not in the way the president suggests. Article II, Section 2 of the Constitution states that the President “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.” Notice that the Senate is not required to give its “advice and consent.” Rather, its consent is a prerequisite to enabling the president’s nominee to take up his or her office.

Article II, Section 2 does not lay out any specific procedure by which the Senate can refuse its consent. It does not indicate whether it must do so by taking a vote, or whether it can simply refuse to consider the president’s nominee at all. However, Article I, Section 5 states that “Each House may determine the rules of its proceedings.” That power includes the rules for considering judicial nominations, as well as all other Senate business. Thus, so long as the Senate has established rules that allow it to refuse to vote on a nominee, it can do so – just as it can refuse to vote on bills, treaties, or any other business that comes before it.

This interpretation of the text is consistent with years of practice. Both Democrats and Republicans have often blocked judicial nominations by filibustering them or otherwise preventing them from coming to a vote. In one well-known case, the Democrats held up George W. Bush’s nomination of Miguel Estrada to the DC Circuit for over two years, until he was finally forced to withdraw without ever getting a vote of any kind. They did so because they had concerns about Estrada’s judicial philosophy – exactly the same reason why Republicans might end up blocking Obama’s Supreme Court nomination today.

 Historically, most such refusals to vote involved nominations to the lower courts rather than the Supreme Court. But the Constitution does not establish different rules for Supreme Court nominations as opposed to lower court ones. Any procedure that is constitutional for the latter is also permitted for the former. Blocking a Supreme Court nominee may be unwise, irresponsible, or politically risky. It may be worse behavior than blocking a lower court nomination. But it is not unconstitutional.
Democrats, and democratic true believers, have every reason to try to pressure, insult and otherwise beat on Republicans to promote conduct that maximizes the chances of having a left-wing zealot replace Scalia, but they may not ethically misrepresent what is going on. The Senate is not “refusing to do its job,” nor is it doing anything Democrats wouldn’t do, and haven’t done, and recently, regarding other court nominations. I’m tempted to say that we know the Democratic and news media mau-mauing is intellectually dishonest, because Harry Reid is leading it. Any time you follow Harry Reid’s view of what’s “right,” your ethics alarms should start ringing.




104 thoughts on “Ethics Review Of “Supreme Court Vacancy Theater”

  1. I do believe (a personal belief, not an interpretation of the Constitution or an analysis of ethics) that when a President does nominate someone, the Senate should move prudently but expeditiously to vote on the nomination. As everyone knows, multiple nominations have still not been brought to a vote in the Senate; but this is not a new phenomenon. I am also convinced that there is more than enough hypocrisy on both sides. Sen McConnell and others took a different line when Pres Bush was trying to get nominees approved; and Sens Clinton, Obama, Kerry, Reid, (alarm/alarm/alarm) and Durban tried to fillibuster the nomination of Justice Alito. So, I would guess it’s not an ethical violation to propose a candidate provided it’s not done for political advantage; it’s not unethical or unconstitutional to fail to bring it to a vote. However, I would certainly argue that it is unethical to hear so much hypocrisy coming from both sides.

    • Hypocracy is unethical.
      In case it ever comes up hypocracy auto corrects to hippo crack. Which may not be unethical but is a lovely mental image when paired with hypocritical people.

    • Yes. And there’s no question the system could be fixed, and right now. I’d like to see the President establish a tradition in which the Court itself submits suggestions for the job. I think they would tend to be less partisan, and maybe better judges.

        • Good idea, except that the Justices may not have a very good understanding of the legal credentials of those who might be nominated from outside the realm of the federal judiciary. Excellent source of expert input as one — or several — reference points.

      • I’ve been thinking about this since Scalia died and I keep coming back to two insane thoughts. The first one must be insane because I’ve seen no one suggest it. Anything no one has mentioned must be pretty far out there. The second is insane because it would be the worst paranormal-romance ever.

        1: Nominate and confirm a moderate with impeccable qualifications, acceptable to most, who on assuming the bench will tender her resignation pending the confirmation of her replacement. Sandra Day O’Conner. This is similar to the recess appointment route except with senate cooperation so republicans can’t complain about unilateral executive action and she used to be a swing vote so the republicans don’t get everything they want.

        2: The conspiracy theories aren’t as fun as they could be. Murder, blah Grisham did that already. How about he faked his death because the only way he was going to get what he really wanted was to allow a Democrat to nominate his successor. Now he’s off on a quest to find that which is missing and the answers he seeks using the thing he bartered for along with James Madison’s original diaries. It also reveals the real reason he enjoys hunting. I’d start writing an outline for the story if I didn’t think it’d get me sued six ways from Sunday. Laws about publicity and likeness rights really screw the whole SCOTUS fan-fiction genre.

        • I think that 1 would be acceptable to the majority, even without the resignation clause. But you and I both know that Obama is utterly incapable of putting forward a name where credentials took priority over a mixture of XX chromosomes and melanin.

          • The Court has used replacement Justices in the past on a case by case basis—I can’t seem to find authority for when that can be done. O’Connor has done it several times since her retirement. So have lower court judges, like Judge Learned Hand.

            • says

              <blockquote(d) The Chief Justice of the United States shall maintain a roster of retired judges of the United States who are willing and able to undertake special judicial duties from time to time outside their own circuit, in the case of a retired circuit or district judge, or in a court other than their own, in the case of other retired judges, which roster shall be known as the roster of senior judges. Any such retired judge of the United States may be designated and assigned by the Chief Justice to perform such judicial duties as he is willing and able to undertake in a court outside his own circuit, in the case of a retired circuit or district judge, or in a court other than his own, in the case of any other retired judge of the United States. Such designation and assignment to a court of appeals or district court shall be made upon the presentation of a certificate of necessity by the chief judge or circuit justice of the circuit wherein the need arises and to any other court of the United States upon the presentation of a certificate of necessity by the chief judge of such court. No such designation or assignment shall be made to the Supreme Court.

              • Exactly. Maybe I got this impression from Learned Hand being referred to as “The Tenth Justice,” and I came to assume this literally meant he was kind of a SCOTUS utility man. I don’t know how I got the idea that O’Connor was being used this way—can’t happen. Thanks for the reference.

                • O’Connor has sat on lower cases and done tons of mediation work, but never this. In NJ we have a provision for temporarily elevating the senior judge of the Appellate Division if the NJSC falls one justice short, made in a time when things were less partisan.

              • Misremembering O’Connor doing some appeals court work?

                To think out loud for a moment, Temporary replacements isn’t a bad idea, letting the chief justice pick them is though, something like a line of succession would be better. Like the chief judge for whatever circuit the dead or rescued justice is assigned to, so for Scalia it’d be Stewart, for Kagan it’d be Cole. Or the senior most retired judge if chief is unworkable politically. Whatever leaves a designated person rather than allowing a human to make a politically expedient one in the moment.

                And maybe a limit on the number of cases one person could sit-in on so there’s no incentive to leave a seat vacant. Rotate through the retired judges in order of seniority one per case?

  2. Most of is realize that Obama is attempting to “preserve his legacy” rather than upholding some high moral principles. He can nominate a candidate if he wishes but please do not scold the Senate for not “doing it’s job”. His attempt to deceive the public about the Senate’s constitutional duty is disgusting and dirty politics.

  3. The Senate Republicans have the gun rights lobby backing them up.

    President Obama could neutralize the gun rights lobby in this context by nominating Ninth Circuit Judge Alex Kozinski. But for him to do that, Barack Obama would have to be someone other than Barack Obama.

  4. It all boils down to what I have decided is the first of the six basic truths about people. People are biased. They know what they like, they know what they want, and very little is going to change that. In turn that leads to the second basic truth: people are partisan. If the positions of the two parties were reversed, the Democrats would be applauding the Senate’s refusal to take up a nomination by a lame duck President as good tactics, and necessary to prevent key rights from being chipped away at. Of course they won’t admit it. This is bolstered by the next two basic truths: people are lazy and arrogant. They aren’t interested in actually finding out the factual, legal, or other bases for situations like this because it takes effort, and they do not care, because they believe they are smarter, better, and RIGHT. This leads to the last 2 basic truths: People are immature and hateful, so they express their opinions in sophomoric, unfunny, and often downright cruel ways, hence all the attacks saying things like they hope Scalia is in hell being sodomized be a demon wearing a sandpaper condom, and then pat themselves on the back for their wit and insight. People are GENERALLY yeccch, it just takes events like this to bring it out.

    • I believe you are correct, although I tend more toward ambivalence regarding the basic condition of humanity. The older I get, the more I can’t help thinking that Anne Frank’s famous quote about people being really good at heart was just misguided pollyanna-ism.

      But now I have the late Justice Scalia in my mental images in a way that I will never be able to un-think. Thanks a lot.

      • Because as we get older we (hopefully) get wiser, and wisdom sometimes reveals some, in writer’s parlance, “family unfriendly Aesops,” i.e. true but less than wonderful lessons. I regret to say that one of them is that adults should not be looking to the thoughts of kids for guidance or unique insight into the human condition.

        What happened to Anne Frank was a tragedy, however, she was 12 or 14 when she wrote that quote, not old enough to drive, date, or really understand history, and her understanding of the human condition didn’t extend far beyond her family and friends. I wonder if two years later, filthy, scabies-ridden, and dying in a concentration camp, whether she might have thought otherwise.

        It’s no different than useful idiots on the left buying into 11-year-old Samantha Smith saying that the USSR was no different than the US, after Andropov arranged for her to spend weeks by the shore of the Black Sea with dozens of Soviet pioneer girls who made her VERY welcome, or President Carter saying that he talked to his daughter Amy about policy issues.

        My apologies for passing along a yucky image to illustrate my point that people can and do quickly default to being jerkasses when either they think they can get away with it or they let passion turn off their filters.

    • For the record, in a reversed position I’d still think the majority leader announcing outright refusal to consider a nominee to be idiotic and deserving of political retribution.

      Had he merely been passive-aggressive instead and made sure it took 3 months to hold judiciary committee hearings and then if the nominee made it out of committee another three months to hold confirmation hearings spaced out over another month and then oh dear there aren’t 60 votes for cloture, so sorry. I wouldn’t be able to argue that he’s making a power play.

      And if that’s not enough for you, consider that with the fig leaf of respecting the process gone every Democrat now has justification to block all of President Trump’s nominations next year. He’ll just have to pass the time breaking into people’s iPhones and putting people who say mean things about him on no-fly lists.

      • The fig leaf of respecting the process gone?

        You mean the fig leaf your people threw away in the 80s being spiteful towards Reagan? That fig leaf? The one the democrat senate tossed in the trash pile out of spite with Bush? That fig leaf? The one that a Democrat senate put in the incinerator blocking Republican House bill after bill after Bill after Bill after Bill while Obama cried about an obstructionist House????

        That Fig Leaf?!?!?!

        Lose the faux moral superiority act.

        • At least you’re not complaining about things that happened before I was born so progress!

          At any of those times did the Democratic leadership make an announcement tantamount to ‘we won’t consider anything if it comes from you’ or did they instead act against those things they were politically opposed to? There is a difference between I won’t vote for anything that includes x and I won’t vote for anything that has your name attached.

          If you’d like to make specific complains about people currently in congress having done such a thing back then I’d be happy to call those people assholes.

          You’re wrong about faux moral superiority though, I have none. I know full well that I’m a worthless piece of shit bitter misanthrope completely estranged from any community I might have once been able to claim a part in. You can’t insult me texagg04 because nothing you can say is worse than what I think of myself.

          • valkygrrl said, “You’re wrong about faux moral superiority though, I have none. I know full well that I’m a worthless piece of shit bitter misanthrope completely estranged from any community I might have once been able to claim a part in. You can’t insult me texagg04 because nothing you can say is worse than what I think of myself.”

            I’m not sure what to say to someone who is willing to post that regardless of their reasoning for posting it.

          • So Chuck the Schmuck is just that, then, I assume, for saying in 2007 that the Senate should not accept any nominee from GWB with 18 months to go. Even worse, he’s trying to backpedal from it now that it’s getting thrown back in his face.

              • After that tantrum you threw on the other thread, and the ridiculous logical pretzels you have been twisting yourself up into in the name of capturing this spot of the court for the morally bankrupt left and the even more morally bankrupt Obama administration, your credibility is gone. Sit down and be quiet.

                  • I wish I could, in about 3 places. At this point I think I’m going to take a leaf from someone else’s response when others on this thread pushed him way too far and say what I really think, no filters.

                    Beth and v-girl, fuck you!

                    Fuck you both for being self-righteous, arrogant, unthinking jerkasses.

                    Fuck you for being arrogant and biased by twisting the Constitution into saying something it doesn’t just so your side can get its way and then insisting your twisted, ridiculous interpretation is the only one.

                    Fuck you for being hypocrites by ignoring or rationalizing or justifying every single damn time your side has done the same things and in the same breath saying the other side is failing to carry out its Constitutional responsibilities.

                    Fuck you for being dishonest by cherry-picking facts that support you and ignoring and outright denying those that don’t.

                    Fuck you for setting up unresisting strawmen just so you can knock them down and act like you won.

                    And fuck you HARD for your condescending, high-schoolish insults leveled at me.

                    You have no moral high ground to stand on, and neither does anyone on the left here, and that goes double and triple after the disgusting tweets, posts, memes, and other vileness you and folks like you flooded the internet with barely an hour after his death was announced so you could laugh like Beavis and Butthead making a stupid scatological pun. For what it’s worth, I went to school with his son Paul, now Father Paul. I met him (sorry, no pictures, this was 27 years ago, before digital cameras), I heard lectures by him, I was in discussion groups with him. Even the most liberal justice right now on the Supreme Court (Ginsburg) could treat him as a respected colleague rather than the incarnation of all that’s evil. Yet you, who probably could barely understand some of his opinions, can’t do anything other that spew your garbage.

                    • “for being arrogant and biased by twisting the Constitution into saying something it doesn’t just so your side can get its way and then insisting your twisted, ridiculous interpretation is the only one.”

                      Is it not worse than this characterization? In which the Left readily breaks rules and breaks processes and traditions to their advantage, but then demanding Republicans fix those problems only when it’s advantageous to the Left…knowing full well they will break those processes yet again when it will be advantageous for the Left yet again.

                    • Ooo collective guilt for everyone to your left, Stalin would approve. Have any other ideas to share with us tovarich?

                    • Steve… did that make you feel better?

                      It didn’t do much to convince anyone of any rational argument you might have made.

                      It was also atypical. Both of you and what has in the past been deemed acceptable on this site.

                      Feel free to add me to the blacklist of Valkygirl (who I disagree with on many things) and Beth (who I tend to agree with).

          • “At least you’re not complaining about things that happened before I was born so progress!”

            Relevancy level = zero.

            But I assume it was some sort of snarky jab. Really it just sounded dumb.

            “At any of those times did the Democratic leadership make an announcement tantamount to ‘we won’t consider anything if it comes from you’ or did they instead act against those things they were politically opposed to?”

            I see you’ve joined that willfully obtuse column in this discussion. It’s been pointed out to you time and again that this time IS UNIQUE. This Senate is facing a petty, divisive, destructive, hyper-partisan, hyper-ideologue, who refuses to attempt conciliation, refuses to attempt leadership and refuses to even attempt crossing the aisle. Unlike the Democrat leadership of the past who did the same to Republican presidents such as Reagan and Bush…who clearly demonstrated actual bipartisan leadership and actual conciliatory relations.

            But, by all means, continue to pretend like this is just business as usual.

      • 100% of Obama’s motivation is politics, I fully expect a “fall guy” nomination to be presented to add to the divisiveness of this election campaign. Division among the masses is a close personal friend of the political left, it has become their #1 political tactic, everything the political left does is politically motivated to increase the levels of division.

        On Obama’s legacy of domestic accomplishments, division among the masses should be listed as his #1 “accomplishment”.

        What say you, valkygrrl?

        • If advancing political policies you don’t happen to agree with is divisive in your opinion then I really have nothing to say. There’s not anything I would say that will change your mind. I doubt you’d feel different about any other democrat, so be outraged at him, knock yourself out.

          • valkygrrl said, “If advancing political policies you don’t happen to agree with is divisive in your opinion then I really have nothing to say.”

            You look like a complete fool making assumptions about my opinion. What Jack said below is the absolute truth!

            valkygrrl said, “I doubt you’d feel different about any other democrat…”

            That little miss valkygrrl is a completely unwarranted assumption. There are certainly some lying political hack Democrats like Nancy Pelosi, Harry Reid, Debbie Wasserman Schultz, Donald Trump, et al that fall directly into that purposely divisive category, but the vast majority of Democrats simply don’t fall into that category.

            • valkygrrl,
              The problem is the vast majority of non-divisive Democrats keep their damn mouths shut about what the loud mouthed divisive Democrats are doing, thus making the whole of the Democratic Party appear to be that of the loud mouthed divisive crowd. The squeaky wheel.

              • What’s really “cute” is that that seems to be the only thing you got from my comment; you’re a real sucker for bait.

                Trump IS a caricature of what the Liberals think Conservative ideology and values are all about not what real Conservative ideology or values are all about.

                Trump is condemning Republicans “with every syllable he utters”; yes “though this be madness, there is method in’t”. Trump is full of rhetoric that is entrenched in unwavering intellectual dishonesty guided by his appallingly unethical character that is projecting his complete and utter moral bankruptcy and he is using his uncivil rhetoric to steamroll over anything in his path. Trump is using Liberal politicking tactics and he has put them on high doses of crack cocaine; the narcissist thinks he’s invincible and he’s actually stated as much.

                Trump’s values are everything real Conservatives are not, there is nothing ideological about Trump.

                I swear Trump is campaigning against Republicans and Conservative ideology, it’s as if Trump is a wing-nut Liberal.

                • Which things that he’s advocating do you disagree with? As far as I can tell his statements are copypasta from any comment thread on breitbart. Do you claim those are all liberal plants too? What of the idiots who support him, are they plants?

                  He’s saying what at least a third of Republicans want to hear, you can’t no true Scotsman that away so if you don’t like it, deal with the idiots who support him, don’t lay it at my feet.

                  • It’s pretty clear Trump has a “deal” with Breitbart. If it was a legit or trustworthy news source, a news source, that would be a disgrace.

                    Trump’s support is cross party. Idiots are everywhere.

                  • valkygrrl,
                    Did you feel a great big hurricane force wind blow past your head just before you wrote that?

                    FYI Einstein; I actually did not say “plant”. Saying “plant” would directly imply that someone within the Democratic Party intentionally got him to run as a Republican knowing full well the part he would be portraying. I wouldn’t put it past the morally bankrupt psychological advisers within the Democratic Party to come up with such a diabolical plan, but I didn’t say that he’s a plant.

                    To expand on your point about idiots:
                    The supporters of Donald Trump are idiots in exactly the same ways as the supporters of Bernie Sanders, Hillary Clinton, and Barack Obama are idiots; they have all succumb to bull shit political propaganda and lies. So valkygrrl, where in that pile of idiots does your personal allegiance lay its head?

                    P.S. If you’re opinion of Republicans, as a whole, is based on wing-nut comments found on then your level of unlit glow stick stupidity is not fixable.

                    • Just in case readers have no idea what I was referring to when I mentioned an unlit glow stick…

                      Stupid people are like glow sticks, I wanna snap them and shake the shit out of them until the light comes on.

                    • True Jack, the light never glows for the ones that are truly stupid.

                      Maybe that humorous quote should be revised to…

                      Ignorant people are like glow sticks, I wanna snap them and shake the shit out of them until the light comes on; however, if the light doesn’t come on, then what you once thought was ignorance is actually stupidity.

  5. “As for the Democrats,
    1. They would, in all likelihood, do the exact same thing if the positions of the parties were reversed, and thus their current outrage is either manufactured, dishonest, stupid, or hypocritical.”

    Isn’t this notion just a version of “everybody does it”?

    I have often felt the same in reverse when we have heard about Republican outrage regarding something that Democrats have done — as though they wouldn’t do — and haven’t done — the same thing when situations reverse. Democrats, Liberals, Progressives have been demonized for doing things that Republicans do and have done. Doesn’t that make Republican outrage “either manufactured, dishonest, stupid, or hypocritical”?

    A pox on both our houses.

    • “Isn’t this notion just a version of “everybody does it”?”

      Relevant only if the conduct in question is unethical. The Left has yet to demonstrate that this Republican stance or conduct is unethical. That democrats have done the same in the past and it probably was unethical then, it does no guarantee it is unethical now. If the dems doing it actually was not unethical, then it still requires proof that the republicans are acting unethically. Otherwise? Not a rationalization.

    • No, it’s really the Julie Principle. Politicians practice politics. This is politics, and not very remarkable under the unique circumstances, which is why I knew it would happen with absolute certainty.

  6. I won’t rehash my argument — I disagree across the board, but I am wading in on just on one point. Please stop calling the President a lame duck — you’re using that term incorrectly. A lame duck is a President who is in his final term of office AFTER a successor has been elected. Indeed, President Obama is the opposite of a lame duck. But for term limits, he’d be the Democrat nominee (and likely winner) again.

    • That’s not how the term lame duck is commonly used. The published definitions range from your narrow one to “one that is weak or that falls behind in ability or achievement.” Wikipedia’s is:

      “A lame duck, in politics, is an elected official who is approaching the end of their tenure, especially one whose successor has already been elected. The official is often seen as having less influence with other politicians due to their limited time left in office.”

      “Especially,” but not solely. The reason Presidential second terms have generally been unsuccessful is due to the “lame duck” status of a POTUS who adversaries know won’t be around much longer. If there was another term for the current situation, I’d use it. There isn’t.

      In Ken Burns’ Roosevelt documentary, more than one historian said that when Teddy announced, after his electoral victory, that he wouldn’t run for a second full term, he “turned himself into a lame duck.”

      And UGH. Obama only won the last election because of his party’s unconscionable smearing of Romney and criminally slanted coverage by the news media, plus the administration’s withholding facts about other failures, like the Banghazi spin. If you really think this epicly incompetent and failed President would be re-elected, you are more deluded than I thought possible, or the nation has a death wish.

      And what do you mean, “across the board”? What, that this is politics? That the Constitution doesn’t require a vote? It doesn’t! That the Democrats would do the same thing? That this exact set of circumstances are sui generis? You can’t disagree with facts.

      • I just looked up a few other definitions that were consistent with my more literal understanding — cambridge, merriam-webster, and free dictionary.

        I won’t rehash the other points — I’m running to a client meeting and I exhausted this topic yesterday.

        But, I will mull over this gem en route. “He only won the last election because of his party’s unconscionable smearing of Romney and criminally slanted coverage by the news media. If you really think this epicly incompetent and failed President would be re-elected, you are more deluded than I thought possible, or the nation has a death wish.”

        One quick note — demographics are changing wildly Jack. Everyone knows this — even the Republican Party acknowledges this. They can win local elections because of where Republicans tend to live in majority numbers, but they have a problem in general elections. And, given the divisions in the Party right now, a winning outcome is unlikely this time too — unless Bernie Sanders is the opponent. Then they have a chance.

        • 1. I do not believe that the young, brown or any other group is inherently and unalterably stupid.

          2. The “problem in general elections” trope, which is nothing but trash talk, is based on exactly TWO anomalous elections with a candidate who commanded a ridiculous 97% loyalty from an important voting bloc–if white voters acted like black voters, Obama would have lost in the greatest landslide of all time. Before Obama, who was the last Democrat to get a majority of the popular vote in a national election? Jimmy Carter -in 1976–and before him, LBJ, in 1964.

      • In all fairness, Jack, you yourself said something to the effect that Romney lost partly because he didn’t motivate the GOP voters to get out there and vote. But you are right about the rest too. Don’t be too sure Obama wouldn’t win again, though. Color+war on women + scaremongering about what the GOP might take away = third term, and as many more as he wants.

      • Yep, you’re real good at the cut and paste. I still interpret the words differently than you though — but feel free to think that you have debunked me again.

        • “Yep, you’re real good at the cut and paste.”

          Is this some sort of argumentum ad “modum”?? Kind of the rough equivalent of an ad hominem only directed at someone’s methodology???

          So you don’t like my method of defeating your arguments now? Convenient.

          That you stand by your ‘interpretation’ at this point is merely stubbornness, and doesn’t help you. You have been debunked. Your asserted ‘interpretation’ laid alongside the actual words of the constituon show the error of your ‘interpretation’ fairly obviously.

          Denying it at this point is just more willful obtuseness.

          None so blind as those who refuse to see…

          • Great minds differ on Constitutional interpretation Tex. Indeed, that is why there is such an outcry about the current vacancy. If the damn Constitution was so clear, we wouldn’t have thousands of decisions stating what sections mean.

            I’ve made my position clear — so have you. We disagree. Disagreement doesn’t = being debunked.

            • Just quit. Really. Just quit.

              “Great minds differ on Constitutional interpretation Tex. Indeed, that is why there is such an outcry about the current vacancy.”

              Don’t be silly. There is such an outcry about the current vacancy because the Left, like sharks, smell blood in the water and want to move in for a kill, NOW! Down one conservative, lets get a hyper-liberal in NOW!

              “If the … Constitution was so clear, we wouldn’t have thousands of decisions stating what sections mean.”

              Nice. We’re talking about this section, however. How many decisions and opinions have been written on this particular component of the Constitution?

              “I’ve made my position clear”

              It was clear. Congrats. That’s why it was so easy to see the stark contrast between your version of the constitution and the actual Constitution.

              “Disagreement doesn’t = being debunked.”

              If you insisted that 2+2 = 5… and I demonstrated thoroughly, that it actually was 4. You could use that same line… and you’d still be wrong. Just like on the topic at hand.

              Have you noticed how you essentially keep repeating “They’re not doing their job” while those arguing against you are able to elucidate further and further just how your argument is wrong. Yet your further arguments doesn’t seem to elucidate themselves at all. That’s telling that you haven’t really put thought into your stance. At all.

  7. I almost posted this on the original Scalia thread, but decided to wait an see in case I was just being cynical.

    I am predicting that within a month, this will be declared an ethics train wreck.

  8. I see the constitution does not state a minimum number of judges. What then happens if the Senate refuses to confirm any nominees and the number of judges goes down to zero?

  9. For what it’s worth, I think McConnell’s announcement was a wise defensive move on the part of the Republican Senate – and the only preemptive move that could be made from a weak position. Like Zoltar Speaks!, “I fully expect a ‘fall guy’ nomination to be presented to add to the divisiveness”. I also agree with Jack that Obama and the Democrats are likely to use the nomination “as a wedge with various minority constituencies”. There’s too much in the way of past behavior to expect they’ll do anything different.

    I expect Obama to nominate a liberal judge that also happens to be a visibly obvious member of some cherished minority group. Given the looming presidential election, he would have done this regardless of McConnell’s announcement, and would have used it as a political wedge. Democrats are manufacturing a situation in which they can say, “See, Republicans hate [insert cherished minority]!” Given this situation, Republicans can now say, “We told Obama upfront and in advance that we weren’t going to consider a nomination. The nominee’s [insert cherished minority’s attribute] has nothing to do with it.” If McConnell had not made the announcement immediately after Scalia’s death, the Senate would not have this defense available. It’s weak, but it is something.

    • I don’t like the tactic, though I understand it. Mostly it’s bad because of McConnell, and the fact that rightly or wrongly, he’s the one who said that the GOP’s goal was to make Obama a one-term President. And it looks like the Republicans are trying to take away something Obama has a right to do, placing the party on the defensive and opening up yet another opening for the Democrats to play the race card. It would have been good to give Obama a chance to be non-partisan, even though he never would or could be.

      And what if Obama actually nominates a qualified judge who isn’t a leftist loony or a mediocrity who happens the be transexual and in a wheelchair? Then McConnell is trapped.

      • If the nominee (through some miracle) turns out to be a qualified judge who isn’t a leftist loony, McConnell can then come back and claim to be flexible and willing to work with Obama and the Democrats. This would put the Democrats in the uncomfortable position of either telling the Republicans to keep their word and reject Obama’s nominee or going along with the Republicans to confirm a moderate/conservative justice. Again, it isn’t much, but it is something.

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