The examination of the New York Times’ disgraceful editorial of October 26, “The Republican Party’s Supreme Court,” continues. The first section is here; Part I of “A False Narrative Exposed” is here.
“It was never about the supposed mistreatment that Robert Bork, a Reagan nominee, suffered at the hands of Senate Democrats in 1987. That nomination played out exactly as it should have. Senate Democrats gave Judge Bork a full hearing, during which millions of Americans got to experience firsthand his extremist views on the Constitution and federal law. He received an up-or-down vote on the Senate floor, where his nomination was defeated by Democrats and Republicans together. President Ronald Reagan came back with a more mainstream choice, Anthony Kennedy, and Democrats voted to confirm him nine months before the election. Compare that with Republicans’ 2016 blockade of Judge Merrick Garland, whom they refused even to consider, much less to vote on: One was an exercise in a divided but functioning government, the other an exercise in partisan brute force.”
Garland again! Returning to this anomalous and reckless gambit by McConnell signals that the Times has no genuine arguments other than rationalizations. The argument stated amounts to “they rejected our guy’s qualified judge, so we should have been able to reject their guy’s qualified justice!” (Pssst! Times editors! You’re supposed to be objective journalists. You’re not supposed to have a “guy.”)
But the worst is “supposed mistreatment.” Supposed? Here’s the infamous and slander suit-worthy attack on Bork by Senator Ted Kennedy:
“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”
No nominated judge had previously been subjected to insults in this manner, and no judge was after until the Democratics again stooped to such depths in their savaging of Brett Kavanaugh. Robert Bork was a conservative justice, but Justice Antonin Scalia was equally conservative if not more, and Bork was acknowledged to be brilliant by friend and foe. Bork was an intellectual, not an ideologue, and he believed in stare decisus, meaning that he was not a threat to vote to overturn established precedent, as Senator Kennedy, who might have been challenged to have graduate from a correspondence law school, implied. Had the tradition that existed before the Senate Democrats slimed Robert Bork not been obliterated, and the wise rule that if a President nominated a qualified judge for the Court, that judge was confirmed in a bipartisan vote, both Garland and Barrett would have glided through confirmations.
“How will a Justice Barrett rule? The mad dash of her confirmation process tells you all you need to know.”
This is called “not answering the question.” The Times doesn’t know; nobody knows. Trump’s previous two nominations to SCOTUS have surprised, so has Chief Justice Roberts; so have many previous Justices, like Souter, Blackmun, Powell, and others. Interestingly, it is almost always the conservative judges who show the ability to decide cases on their merits rather than knee-jerk ideology, angering the knee-jerk ideologues on the right.
“Republicans pretended that she was not the anti-abortion hard-liner they have all been pining for, but they betrayed themselves with the sheer aggressiveness of their drive to get her seated on the nation’s highest court. Even before Monday’s vote, Republican presidents had appointed 14 of the previous 18 justices. The court has had a majority of Republican-appointed justices for half a century. But it is now as conservative as it has been since the 1930s.”
Again, this is a flat-out misrepresentation. So far, the Roberts Court has not been extremely conservative in its rulings.
Of all the threats posed by the Roberts Court, its open scorn for voting rights may be the biggest. In 2013, Chief Justice John Roberts wrote the lead opinion in the most destructive anti-voter case in decades, Shelby County v. Holder, which gutted the central provision of the Voting Rights Act and opened the door to rampant voter suppression, most of it targeted at Democratic voters.
Here the Times just repeats a hoary false narrative. The Voting Rights Act subjected states to undemocratic federal interference based on a 50-year-old assessment of mostly Southern states as racist because of Jim Crow policies that had been long abandoned. Shelby rightly ruled that this single aspect of the Act was outdated and had to be fixed by Congress using current studies and statistics that have some valid connection to what the modern version of these states are like, and not continuing to handcuff them as if they were still in the era of “Mississippi Burning” and “To Kill A Mockingbird.”
Yet this month, Chief Justice Roberts sided with the court’s remaining three liberals to allow a fuller count of absentee ballots in Pennsylvania. The four other conservatives voted against that count. In other words, with Justice Barrett’s confirmation the court now has five justices who are more conservative on voting rights than the man who nearly obliterated the Voting Rights Act less than a decade ago.
And hasn’t THAT decision by the Court worked out well!
In 2015, when the Supreme Court ruled that the Constitution protected same-sex marriage, Justice Antonin Scalia angrily dissented. “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy,” he wrote.
Whoa! Logic whiplash! The Times is quoting a conservative Justice’s argument against a ruling that the Times vigorously supported, to oppose a conservative Justice who is a follower of Scalia!
The American people, who have preferred the Democratic nominee in six of the last seven presidential elections, are now subordinate to a solid 6-3 conservative majority on the Supreme Court.
“Subordinate.” When the Warren Court handed down one revolutionary liberal ruling after another, legislating from the bench to an extent never seen before or since, the Times saw no “subordination,” because there is none. Maintaining the Rule of Law and protecting the Constitution cannot be achieved by polls and ballots.
Republicans accuse those who are trying to salvage the integrity and legitimacy of the Supreme Court with trying to change the rules or rig the game. Having just changed the rules in an attempt to rig the game, that’s particularly galling for them to say.
No, Republicans didn’t change the rules. They exploited a hole in the rules that everyone who was fair and rational agreed at the time should not be exploited. The Democrats, foolishly, cynically, hypocritically and recklessly wanted to make it a rule when it served their interests.
The courts must not be in the position of resolving all of America’s biggest political debates. But if Americans can agree on that, then they should be able to agree on mechanisms to reduce the Supreme Court’s power and influence in American life.
Talk about hypocrisy! The Times didn’t make this argument when the Court was stopping segregation in the schools in a sweeping but essential act of judicial activism, or composing a Miranda rights warning for police to recite to suspects, or declaring abortion a Constitutional right, or doing the same for same-sex marriage, all decisions that profoundly altered American life. Now that the court has a more conservative tone, however, the Times regrets the Court’s power and influence.
As Justice Scalia would put it, a democracy in which the people’s will is repeatedly thwarted by a committee of unelected lawyers is not a democracy at all.
Again appealing to Scalia as an authority, whose judicial philosophy Barrett follows, and whom the Times opposed and attacked at every turn! I don’t know that I’ve ever read anything like this: quoting one’s ideological foe to persuade people to reject what that adversary stood for. It may be the most incompetent (or desperate) rhetorical device I’ve ever seen. What would compare to it? Abraham Lincoln approvingly quoting Simon Legree in the Lincoln Douglas debates? Martin Luther King saying, “As George Wallace said…”? Ronald Reagan stating, “In the wise works of Josef Stalin…”?
These are the people who run “America’s paper of record.”
Incredible.
Ethics Alarms 
Oops. Duplicate post?
Nope, never mind. I just saw the (cont.)
The same picture at the top threw me for a minute, too, Glenn!
It’s amazing to me that, in reading those legendarily scurrilous attacks against Robert Bork, it sounds like a direct quote about what they said about Barrett. It also sounds rather tame by modern standards – there’s hardly any profanity at all!
I’m also getting really tired of the “The American people, who have preferred the Democratic nominee in six of the last seven presidential elections,” shell game. It’s the same old anti-electoral college crap being trotted out as a premise that all “rational, reasonable” people accept as given.
You also have to wonder who they count as ‘The American People’. Do the opinions of dead people count? The group of people they are referring to include dead people. What about foreign nationals? Do they count as “The American People”? We have 3.5 million more voters that we do adults. Do those 3.5 million ‘shadow people’ count? LA country has 707,000 more voters than people and San Diego county has 800,000 more. Do the opinion of those 1.5 million people count?
Trump
Obama
Obama
Bush 2
Bush 2
Clinton
Clinton
Bush 1
Reagan
Reagan
Where is the D preferred in six out of last seven contests? Even if we stipulate Biden wins this one that computes to only 4 out of last 7 or 5 out of last 10.
The claim is going to be based on plurality of popular vote as a minimum standard. Which again, our system for president is wisely not built on a plurality or even a majority of a popular vote as an aggregated number, but rather is based on which President can achieve a broad national consensus as reflected by the Electoral College.
But let’s pretend we should consider the popular vote. It’s still dishonest to use a plurality standard to claim “American’s Preferred”. If Americans did not cast more than 50% of the vote to any candidate, then NO candidate was “America’s Preferred”. And given the wildness of the way Americans vote anyway, I’d say if you don’t breach a “landslide” ratio of like 53-55%, then you still aren’t the “preferred” candidate.
Now, given that we already know it’s a stupid standard, let’s still pretend that the assessment of *PLURALITY* win of popular votes = “America’s Preferred”:
Highest Percent is in the Left Column, Bold is the Electoral Winner, Italicized is an actual popular majority.
Bill Clinton 43.0% George Bush 37.4%
Bill Clinton 49.2% Bob Dole 40.7%
Al Gore 48.4% George Bush 47.9%
George Bush 50.7% John Kerry 48.3%
Barack Obama 52.9% John McCain 45.7%
Barack Obama 51.1% Mitt Romney 47.2%
Hillary Clinton 48.2% Donald Trump 46.1%
Now, if the counting holds true, it looks like Biden will have a popular majority in addition to an electoral majority.
That count, according to the silly standard, does show 6 of 7 previous races “Preferred by America”.
(These numbers are lifted from Wikipedia and vary by a few decimals from what I had in a excel file I created from other election data sources, but not enough to change the analysis)
(And if there hadn’t been a spoiler who largely pulled away conservative voters in 1992 and 1996, Bill Clinton would have been blown out by the Elder Bush in a crazy landslide in ’92 and the election could have swung either way between Dole or Clinton in ’96)
But that kind of evaluation doesn’t help, because if Clinton had been sunk thoroughly in ’92, there’s no telling who the Republicans and Democrats each run in ’96…and barring that outcome, who knows how the rest of history unfolds anyway. Though we’d still be looking at a party realignment in the 2020s just like we are now.
An increasingly questionable statistic, if, as it seems is increasingly likely, that Democrats inflate vote counts to push a narrative. Whose to even believe that single party rule California has posted honest numbers since they became solidly blue and under control of a party that doesn’t give a damn about election integrity?
Who can trust any election numbers at this point coming out of Democrat bastions, when looking back over all the years since the Democrat belief they had their permanent revolution ‘peacefully’ in hand in 2008?
No, Republicans didn’t change the rules. They exploited a hole in the rules that everyone who was fair and rational agreed at the time should not be exploited.
What “hole” was that? I am confused by this comment. There is no rule, and no rule with a hole in it, that says the majority of the court must immediately act on a judicial nomination, either for Circuit, Appeals, or Supreme Court judges.
Perhaps you are talking about the filibuster rule?
The courts must not be in the position of resolving all of America’s biggest political debates. But if Americans can agree on that, then they should be able to agree on mechanisms to reduce the Supreme Court’s power and influence in American life.
Now the NYT confuses me. Even leaving aside the hypocrisy, which you duly noted, the reality is that the USSC has long been the ultimate arbiter of our biggest political debates. Your response rightly gets a big start on it, but the reality is, America has never “agreed” that the courts must not be in the position of resolving the knottiest problems we face. They have resolved most of them, from Marbury to Jim Crow to Brown to Lochner to Miranda to Sullivan to Nixon to Bush v. Gore to Santa Fe to Obamacare to gay marriage. The list is so stuffed it’s impossible to recite without a much bigger blog. And America has mostly approved, although apparently, the Times no longer does, owing mainly to the current composition of the Court’s majority.
To paraphrase the aforementioned Robert Bork, who once wrote something to the effect that, “It is said that we cannot legislate morality. The truth is, we legislate little else.”
The truth, NYT, is that the Court rules on little else but America’s biggest political debates. It has been thus since Marbury.
As Justice Scalia would put it, a democracy in which the people’s will is repeatedly thwarted by a committee of unelected lawyers is not a democracy at all.
But even Scalia wouldn’t have said that the court should not rule on matters which have been settled by the democratic process. For a fact, that is all they have ever done. Every time they invalidate a law, it is a usurpation of democracy, as the Times would have it. So I can’t imagine what argument they are making here. Are they saying Brown v. Board was a “thwarting” of the People’s will, or Roe? It seems not only is this an appeal to authority, but an attempt to have it both ways — judges shouldn’t interfere with legislation the Times thinks is good, and should invalidate that which they think is bad.
Well, why not just appoint them dictators and have done, I say, rather than all this pussyfooting around.
These are the people who run “America’s paper of record.”
A title who’s validity has been undone by recent history, sez me.
Oops. Typo in my first paragraph. “Court” should be “Senate.”
The rule referred to is the “rule” the Times claims was changed. The Constitution says that the Senate advused and consents to Presidential nominations. It is very clear what the Founders meant, and the entire 200 years prior to McConnell’s stinker followed what was that intention. It’s obviously unfair not to even consider a President’s nomination—I can’t find an example of any Presidential nomination for any office that was just ignored like Merrick’s was, and for the same reason it shouldn’t be repeated or turned into a precedent. The system doesn’t work if the Senate behaves that way. The unwritten rules exist because no Rules cover everything.
I have a whole essay in my hat on THIS topic.
Why would you try to mitigate what McConnell did with Garland?
I correctly pointed out that there is no such “rule.” That’s what you wrote, and while you may think that’s what the Founders meant, it isn’t what they said in the founding documents. I look forward to your essay.
As far as mitigating what McConnell did, it isn’t necessary for me to defend him, and in fact, I’m not — any time you escalate something, you will be forced to suffer a similar escalation when the shoe is on the other foot, and I’m generally opposed to such situational abuse and the destruction of traditional behavior. I am simply objecting to your construction of it.
Perhaps you could correctly say there is a tradition of attending promptly to judges, and I would not disagree with that. But in my view, no matter how vociferously you argue the point, you’ll be performing the rhetorical equivalent of banging your head against the wall by trying to convince me that traditions are rules. They aren’t.
I loath the term, “unwritten rule,” because it is an oxymoron. It is used by us when we want to demand people do things we think are right by constructing them as “rules” to reinforce a weak argument that there should be kind of formal force behind them. There may be the force of social convention and tradition, but if it’s informal, it is informal for a reason.
Rules exist, or they don’t. If it isn’t formalized, it isn’t a rule.
I changed the graphic at the top to new clowns against my principled judgment that a “continuation” of a single post should have the same graphic as the initial section. I think that should eliminate confusion, but since it inexplicably increased confusion (because so many readers missed the
I think your judgment was reasonable on that, I just saw the graphic and made an assumption without reading further. That’s not on you.
No it is. If three of our smartest commenters were confused, then hundreds of the less bright must be too. It was my mistake.
Hell, even I don’t read the headlines carefully—hence Part One read “Exosed” for hours and nobody noticed.
✋ don’t forget us stupid ones too. 12 out of 9 of us are confused also.
I must say, my own experience blogging reflects yours in that regard to a … disturbing degree. 🙂
Jack, _I_ noticed “Exosed,” quite early. But I didn’t want to say anything at that point, because I had only begun to read your post – and, because my vocabulary has become so much bigger since I started reading EA. So I consciously meant to ignore “Exosed” until I was done reading your post, because for all I know, you meant to use a word I had not learned yet.
So was my silence unethical?? Or was my ignorance or presumed ignorance unethical?
A Trump-voting, non-reader of the New York Times Eeyore wants to know.
200 years of practice does establish a rule, Glenn, and there’s a perfect example in Tyler’s decision that the VP should assume the Presidency. We have followed that interpretation of the language because it works well, but there is no written requirement in the Constitution…it’s a rule of reason. As in many other places (the 2nd amendment is another example) the brilliant founders weren’t sufficiently clear, so the “rule” is completed by practice.’ The rule that the opposing parties in a democracy revert to loyalty and an acceptance of the new President after an election is another “rule,” because it has to be that way, or the democracy doesn’t work.
The Times article wrongly said that the GOP “changed” the rule. No they didn’t, not this time. They tried to change the rule in 2016, because there wasn’t an explicit requirement in the Constitution that all Presidential nominations must be considered and voted on, because the Founders didn’t think some asshole would do otherwise, and because they knew, as we do, that the system doesn’t work. If they had anticipated McConnell’s trick. There was a rule, Mitch didn’t follow it, and now the democrats want to say the breach created a new rule. He didn’t. But there was still a rule.
Well said. As many with a Pom background would have said about McConnell blocking Garland, “It’s just not cricket”. But sometimes when previously accepted conventions are flouted, the only answer is to change the rules. Our Australian equivalent of McConnell, wasTrevor Chappell bowling underarm for the last ball of a 1981 match against New Zealand. The rules have now been changed but Aus NZ relations have not yet fully recovered. The shame remains. This incident will live in Antipodean infamy far longer than the ‘sandpaper incident’ against South Africa when the Australian team was simply caught breaking the rules, by roughing up the ball.
200 years of practice does establish a rule, Glenn, and there’s a perfect example in Tyler’s decision that the VP should assume the Presidency. We have followed that interpretation of the language because it works well, but there is no written requirement in the Constitution…it’s a rule of reason.
Jack, the Constitution is merely unclear on this requirement, but the requirement for the Vice President to assume the duties of the president in the case of “…Death, Resignation, or Inability to discharge the Powers and Duties…” is, in fact, written right into Article II sect. 1 clause 6.
The question at issue was the length of that authorization — would it be for the duration of the term or until another regularly scheduled election was held. Seeing as there is no provision in the Constitution for a special federal election outside the normal rotations, reading the rule as Tyler did is a “rule of reason,” as you say, because it falls neatly into Occam’s Razor — it is the simplest and most straightforward interpretation — not to mention the fact that scheduling another election in 1841 outside the normal rotation might have taken years to organize. Tyler did set a precedent, but there has been a formal rule established since 1967.
In the case of the Senate’s timing of consideration of nominations, there is no time set by the Constitution for advice and consent. Further, there is no formalization of what constitutes a refusal of consent — arguably, it could be a simple refusal of the Senate to consider a nomination. For a fact, there have been many federal judges nominated by presidents who were never voted on or even given a hearing by the Senate, so the “rule” that nominations must be voted up or down has been flaunted many times at lower levels.
If the Founders wanted an up-or-down vote on every nomination, it’s reasonable to think they would’ve said so. Maybe it was (pardon the crude paraphrase) an “asshole-anticipation omission,” but it is silent on the subject, regardless.
As in many other places (the 2nd amendment is another example) the brilliant founders weren’t sufficiently clear, so the “rule” is completed by practice.’
I don’t agree that the Second Amendment is unclear, and neither do the vast majority of experts who have examined its construction. I know that’s an appeal to authority, but I consider that at least as defensible as an appeal to tradition.
I am unconvinced by your argument.
Glenn, the ambiguity regarding whether the VP becomes President for the rest of the term or is just a placeholder until a special election is set up is a material error, and now the current practice is a “rule,” though an unwritten one. If Tyler had taken the other course, and every VP followed his precedent until, say, LBJ declared, nope: I’m President, period, do you really think he wouldn’t have been accused of breaking “the rule”?
What about the two term convention? The “rule” worked fine until FDR shattered it. When ethics fail—as in the breaking of useful and sensible unwritten rules for expediency or personal gain, then a law has to plug “the hole.”
Fair points, Jack, and although I remain unconvinced, you get the last word on this one. 🙂