Tuesday, September 22, 2020

Will Schumer And The Senate Democrats Go To The Wall To Stop An Illegitimate SCOTUS Appointment?



AOC: "We need to make sure that we mobilize on an unprecedented scale to ensure that this vacancy is reserved to the next president, and we must use every tool at our disposal."

Early yesterday, Alisyn Camerota hosted Jeffrey Toobin on CNN's New Day and I guarantee you, establishment Democrats did not like what they heard. She spoke with him about what the congressional Democrats can do if Trump and his enablers ramrod through an extreme-right Supreme Court justice. "Democrats are great about talking big," said Toobin, clearly referring to Chuck Schumer, "but we’ll see if he has the-- if he and the other Democrats have the guts to do anything. If they retake control of the Senate, will they really add the two seats on the Supreme Court? ... Because they’re weak and they’re wimps and they’re afraid. We think about Bush v. Gore and, which David [Boies] argued. In 2016, Al Gore said no street protests. This is just a legal process, while David saw in Tallahassee and Washington the Republican forces massing against them, literally on the streets. There is a difference to how Democrats and Republicans go about these fights, and we’ll see if Democrats learn anything from Republicans here. Yes, it’s interesting that Chuck Schumer said nothing is off the table, but that’s not a commitment to do anything."

The Democrats are not without weapons in this battle, just without leadership that  has the heart and the guts to wield them. Schumer should tell McConnell in no uncertain terms that if the Democrats win back the Senate in November, he will propose legislation to make Puerto Rico and the District of Columbia states, something the GOP dreads. It would probably pass but even if it doesn't, Marco Rubio, Rick Scott and Pat Toomey will put their reelections in jeopardy by voting against Puerto Rican statehood. Then there's the much discussed concept of going back to 9 judges (1837), although I have a tip for Schumer, In 1863, Congress passed a law establishing a Supreme Court with 10 justices. He should threaten 10 and then compromise on 9. It wasn't until 1869 that the 7-judge court was established.

Writing last week for the New Yorker Toobin himself reported on a less-discussed threat conservatives would find unpalatable. He wrote that Demand Justice, founded by Christopher Kang, who helped run judicial selection for Obama, and Brian Fallon, a former Schumer aide, "argue that the next President should not nominate any judicial candidates who come out of the world of corporate law. As Kang and Fallon, two insiders to the process, point out, even in Democratic administrations, there is a recurring pattern among nominees to the federal bench: 'A typical nominee might have an Ivy League degree and clerkships with one or more respected federal judges,' they write, in a new article in The Atlantic. 'But perhaps no qualification is more prevalent than prior work at a major private-sector firm, representing the interests of large corporations.' As they note, roughly sixty per cent of federal appellate judges come from corporate firms."

It would be hard to imagine Schumer backing anything like that-- not to mention Biden, but if it's part of an informal, off-the-record package of threats to throw at McConnell...

Toobin claims that "The moment is especially ripe for this proposal. The story of the Roberts Court is its embrace of corporate power. The court has consistently ruled against labor unions and for big-dollar campaign contributors, polluters, and other wealthy interests. Justices Neil Gorsuch and Brett Kavanaugh, Trump’s appointees to the court, have embraced this agenda and appear likely to push the Court even more dramatically in this direction. Both showed a particular interest in limiting regulations during their time as circuit-court judges. Sheldon Whitehouse, a senator from Rhode Island, has been one of the few Democratic politicians to focus on this issue of corporate power in the courts; he’s even written a book about it. By 2021, it will be especially important to establish some sort of counterweight to this trend, because Trump will have made so many appointments, and because of the possibility of Supreme Court vacancies... Kang and Fallon write, 'There are plenty enough highly qualified individuals with other backgrounds-- civil-rights litigators, public defenders, and legal-aid lawyers-- that the next president can afford to make identifying new kinds of candidates a priority.'"

On Friday, the New Yorker published an essay by Jane Mayer, suggesting that McConnell cares more about keeping the GOP Senate majority than about putting another rightist on the Court. McConnell, she wrote, is as immune to shame as The Donald is. Norman Ornstein told her that "McConnell will do anything that serves his interests. We know that."

A former Trump White House official told her that "McConnell’s been telling our donors that when R.B.G. meets her reward, even if it’s October, we’re getting our judge. He’s saying it’s our October surprise."
But now that the moment is here, the calculation isn’t quite so simple. On Friday night, McConnell released a statement vowing that a Trump nominee “will receive a vote on the floor of the United States Senate.” While McConnell’s obstruction of Obama’s nominee, Merrick Garland, made him the bane of liberals, he has regarded it with pride as the single “most important decision I’ve made in my political career.” He and many others believe it handed Trump his victory by motivating the politically powerful evangelical bloc to vote for Trump, despite their doubts about him, because he promised to fill the Court vacancy with a social conservative. It’s entirely possible that the same scenario will play out again this November, with Trump and McConnell offering another enticing gift to evangelicals.

But McConnell is also what Ornstein calls “a ruthless pragmatist,” whose No. 1 goal has always been to remain Majority Leader of the Senate. He’s made the conservative makeover of the federal court system his pet project, but if he faces a choice between another right-wing Justice or keeping his control of the Senate, no one who knows him well thinks he’d hesitate for a moment to do whatever is necessary to stay in power. In fact, back in the summer of 2016, when it looked like Trump would lose to Hillary Clinton, far from being distressed at his party’s dim prospects, McConnell was savoring the probability of being the single most powerful Republican in the country, according to a confidant who spoke with him then.

The problem for McConnell now is that it may be impossible for him to both confirm a new Justice and hold on to his personal power as Majority Leader. A power grab for the Court that is too brutish may provoke so much outrage among Democrats and independents that it could undermine Republican Senate candidates in November. As he knows better than anyone, polls show that Republican hopes of holding the Senate are very much in doubt. If Joe Biden is elected, enabling a Democratic Vice-President to cast the deciding vote in the Senate, Democrats need only to pick up three seats to win a majority. And, at the moment, according to recent polls, Democratic challengers stand good chances against Republican incumbents in Maine, Arizona, and Colorado. Democrats also have shots at capturing seats in South Carolina and Iowa. [She's leaving out North Carolina, Montana, Alaska and Georgia.]

No one knows for sure how the politics of the Ginsburg seat will play out in close Senate races. But the issue likely puts some of the most endangered Republican candidates in very tough spots. In Maine, for instance, Susan Collins can’t afford to either alienate the Trump base by voting against a conservative Court pick or to alienate moderate Republican women, who don’t want a radically right-wing judiciary. Late on Saturday afternoon, Collins contradicted McConnell’s line, saying in a statement, “In fairness to the American people, who will either be re-electing the president or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the president who is elected on November 3rd.” Hours before the news of Ginsburg’s death on Friday, Lisa Murkowski, an independent-minded Republican senator from Alaska, said that she thought it was too late for a confirmation vote, telling a public-radio interviewer that “I would not vote to confirm a Supreme Court nominee.”

Given those complications, Ornstein predicts, McConnell may “use some elements of delay.” McConnell conspicuously laid out no timetable when promising a Senate vote for Trump’s nominee. Ornstein speculates that he may hold off on a vote until after the election to provide cover for his members but, meanwhile, obtain private pledges of support from them. It would mean he’d have the votes to ram a confirmation through the Senate during the lame-duck period after the election, regardless of who has won the White House.

Senate watchers suggest that the first thing that McConnell probably did after learning of Ginsburg’s death was to call every member of his caucus, in order to make an assessment about whether it would help or hurt his members to force a Supreme Court confirmation vote. On Friday night, he also issued a thinly veiled warning to his caucus members to shut up, or, as he put it, “be cautious and keep your powder dry.” According to the Washington Post, which obtained a copy of the McConnell letter, he warned, “For those of you who are unsure how to answer, or for those inclined to oppose giving a nominee a vote... this is not the time to prematurely lock yourselves into a position you may later regret.”

Keeping the Republican senators in line was also among the top concerns McConnell had when Antonin Scalia unexpectedly died, in February, 2016. McConnell immediately coördinated with Leonard Leo, then the executive vice-president of the powerful conservative legal group the Federalist Society, to plot a path forward that would avoid what Leo reportedly called “a cacophony of voices.” To keep control, they came up with a plan. Although eleven months remained in the President’s second term, McConnell immediately announced he would block a vote for any Obama nominee because it was an election year, and so he argued, “the American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.” The speciousness was breathtaking. Since the nation’s founding, the Senate had confirmed seventeen Supreme Court nominees in election years. Moreover, the “American people” had made a choice-- they had elected Obama. But, despite declaring themselves as conservatives who respect precedent, McConnell, in consultation with Leo, simply invented a new rule to cover their radical defiance of past precedents and accepted norms.

Facing the same kind of unconstrained power play by McConnell again, the Democrats have few procedural weapons at their disposal other than taking radical measures themselves. For more leverage, Brian Fallon, the executive director of Demand Justice, a liberal group, says that if McConnell forces a confirmation vote before the election, Democrats need to threaten to expand the size of the Supreme Court if they win control of the White House and Senate in November. He believes there may be support for this even from unlikely moderate Democrats, if McConnell tries to strong-arm a vote. Senator Tim Kaine, of Virginia, who is ordinarily a mainstream Democrat, has said he could support enlarging the court as a tactic, if the Republicans force a confirmation vote. The Democratic senator Ed Markey, of Massachusetts, and Congressman Jerry Nadler, of New York, have also embraced the idea. Fallon also suggested that if a Trump nominee has yet to be confirmed after the election, and if Biden wins the White House, he, as President-elect, should name his own nominee, creating a scenario in which there are two nominees backed by opposing parties simultaneously duelling for confirmation. The Democratic members of the Senate, he argues, should decline to attend any courtesy calls, or confirmation hearings meanwhile, for any lame-duck Trump nominee.

ACB by Chip Proser
David Cole, the national legal director for the American Civil Liberties Union, also called on Democrats to fight rather than fold. He told me, “I think we should demand that the Senate respects her dying wish,” referring to a statement from Ginsburg released after her death by her granddaughter Clara Spera, which said, “My most fervent wish is that I will not be replaced until a new President is installed.” He argued that although what the Senate did to Garland “was wrong, if they have a shred of consistency, they should hold off until after the Inauguration. And if not, progressives should take to the streets.”

Ornstein foresees the potential for a historic political rupture if Trump, who lost the popular vote in 2016, and McConnell successfully seize a Supreme Court seat for a second time. “If McConnell gets away with this again, this will be a Court like none we have ever seen in our lifetime. We will be back to the pre-New Deal era,” Ornstein said, referring to one of the most conservative courts in the last century. He predicted, “If McConnell does this, it’s not just an act of hypocrisy, it’s one of the most dangerous breaches we’ve seen in our lifetime. There will be consequences. I think there would almost be revolution in this country.”

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At 5:30 PM, Anonymous Anonymous said...

Why waste energy fighting the Senate minority-majority. If Trump wins a 2nd term the point of all that wasted energy will be moot. The focus should be on removing Trump and changing the senate, then repacking the courts to remedy.

At 5:57 PM, Anonymous Anonymous said...

Certainly Schumer will lead the Senate Democrats to the wall! They will wear their COVID masks as blindfolds and the smokers will ask for a last cigarette. It would serve Pelo$i right to have to be the one to give the order to fire.

At 6:38 PM, Anonymous Anonymous said...

Democrats should say NOTHING about packing the court. They should simply do it. Democrats always speak loudly and carry a twig. This time they should simply point out what a worthless right-wing bigot their inevitable S.Ct. nominee is.

The problem is that they need at least 5 new Senators (a 3 vote majority) because there's Joe Manchin who is utterly worthless. There are also a bunch of other corporate Dems who won't vote to end the filibuster because -- reasons.

They are beyond worthless. But, they are also capable of bending to pressure if we apply it relentlessly. After all, the hard-right did the exact same thing. Their own corporatists want to betray them, and often do because they are too stupid to learn it (unless Fox News tells them). But, on issues they care about, they were relentless and got rid of every single Republican who was willing to compromise with Democrats on anything.

We could certainly do the same thing.

At 11:06 PM, Anonymous Anonymous said...

The GOP has a much easier task because there is a lot more ideological coherence. Even where there are disagreements between the base and party elites, these tend to be in distinct areas, in ways that are not in contradiction. e.g. prioritization of social reactionary policy, or economic reactionary policy? With these SCOTUS picks they're able to do both. There is no real tension. The problem that the Dems have is that the critical mass of the elected leadership in the Senate is also economically reactionary (to a degree that isn't as true with the Dem base). The sop that's thrown to the Dem base is more progressive social policy. The risk with an economically reactionary agenda is that it ultimately may start undermining the progressive social policy agenda as well. However, for a segment of the party leadership and party elites, a 6-3 conservative majority might not be the worst possible outcome. Now whenever they can't enact progressive policy goals in economic matters, they have yet another excuse to give to their voters. And they have a reasonable basis for believing that the party base will give them a pass as has happened for decades now. It's really only at the local level and in some House races in solidly blue seats where there is some evidence that the dynamic may be changing.

As far as this SCOTUS pick goes, the Dems have the tools to block RBG's replacement from happening between now and January. The leadership is just choosing not to use those tools (e.g. on the Senate side it would mean using unanimous consent for everything, in the House it would mean filing articles of impeachment for several dozen Trump administration officials). The problem appears to be that there isn't a sufficient degree of discipline or commitment within the elected leadership to realizing that goal. If the shoe was on the other foot, I strongly suspect the GOP would find a way to prevent the selection from happening. The answer in the immediate term is that the Trump show has got to end, and people can and should do everything possible to pressure the party leadership in blocking the nominee. Realistically though, this is going to be a long process over several election cycles, where a lot of these elected Dems are going to have to be disciplined by the voters and lose primaries.

At 1:29 AM, Anonymous Anonymous said...

Welcome to the end of the Democratic Republic. I'd love to ask Dr. Franklin is he ever suspected that we would somehow hang on to it as long as we did, even with a Civil War in the midst of it.

But then, no America alive even knows about his lesson in compounded interest in gifts he bequeathed to the Cities of Philadelphia and Boston. The amounts would even interest the lotto-addled morons of today.

At 6:33 AM, Anonymous ap215 said...

I want to be optimistic & Schumer is my Senator but no he won’t listen to the people he’s bought off & paid for by his corporate donors 2022 is his re-election year & i can’t wait to support his primary opponent(s).

At 7:13 AM, Anonymous Anonymous said...

get real here all you lefty potted plants:

if obamanation's nom was legit, then trump's nom will be legit. you can whine about the hypocrisy of the Nazis in refusing to give Garland a hearing, with reason. But the constitution is clear. Or is the constitution only relevant when it benefits you? like the Nazis?

also, get real here all you lefty potted plants:

the democraps are pussies. they will never take any political risks, not even to do the right thing. they will commit election fraud and refuse to demand accurate vote counts (see: 2016 WI, Mich, etc). They will refuse to honor their oaths by refusing to impeach.

And scummer is as corrupt as anyone in the Harding admin ever was.

and 6:38 is incorrect. the democraps cannot and will never be influenced by anyone who is not waving an 8-figure check (at least).

The only thing left that we all can do is to stop electing them and start electing a different party. If they are not there, their corruption and cowardice and ineptitude cannot be exercised.

but potted flora cannot be expected to understand any of this, now can they?

At 10:05 AM, Anonymous Anonymous said...

Anon 7:13 AM,

This isn't really a question of what the Constitution allows. It's a question of political norms. In 2016, the GOP established a standard, they are breaking that standard now. The Dems made an argument to confirm a moderate Republican to fill the Scalia vacancy, but lost the argument -- a group of Trump donors who gave over $1 million to Trump's inauguration committee got their judge instead. Those are the new rules. A big part of the reason why there were so many judicial vacancies for Trump to fill is because of uniform obstruction by the GOP during the Obama years during a time when the GOP was mostly in the minority. As soon as the GOP got into power it ditched a decades old practice of using "blue slips" for lower level judicial nominations, and rammed things through. McConnell broke with longstanding custom when he refused to allow Obama to fill ANY vacancies in the DC Court of Appeals. This was at a time when the Dems had a majority. This was also contra a situation in 2005 where the Dems selectively blocked some judicial nominees and let several Bush picks proceed to a floor vote. The reason the Dems broke the filibuster rule was because McConnell had escalated to a point where it wasn't a question of striking one or two objectionable picks, but preventing Obama from filling any seats. At this point it's just a question of power politics. The old norms are out the window. The Constitution is silent on a lot of questions. e.g. the entire concept of "judicial review" is a matter of custom, not explicit constitutional authority. When it comes to adding or removing seats, or blocking appointments, these are all clearly within the bounds of the U.S. Constitution. When Andrew Jackson unilaterally decided to ignore the Courts ruling over the removal of Cherokee from Georgia, that was technically within the bounds of the U.S. Constitution. Lincoln largely ignored and sidelined Taney and the conservative Court when he was president. The Court itself, through it's political decision making played a major role in precipitating the Civil War through Dred Scot. Fundamentally, the Courts are insulated from public opinion, but not immune from it. If the public decides that the Courts have overstepped their authority the people have plenty of Constitutionally sanctioned avenues that are available if there is the political will to use it. Even right now if the Dems wanted to apply McConnell rules and block Trump's pick they could. It's not a question of the U.S. Constitution. It's a question of norms and political custom.

At 10:28 AM, Anonymous Anonymous said...

"Then there's the much discussed concept of going back to 9 judges (1837), although I have a tip for Schumer, In 1863, Congress passed a law establishing a Supreme Court with 10 justices. He should threaten 10 and then compromise on 9. It wasn't until 1869 that the 7-judge court was established."


We have nine Justices now. The proposal surely is to go to 11 or even 13. Threatening 10 and 'compromising' on 9 is not going to do anything....

At 11:02 AM, Anonymous Anonymous said...

--Threatening 10 and 'compromising' on 9 is not going to do anything....--

Which is a metaphor for "taking a stand" in neolib talk. : }

At 12:57 PM, Anonymous Anonymous said...

10:55, I take your point, truly. But in a shithole where norms are whatever the party in power says they are (unless the democraps are numerically in power but let the Nazis rule anyway), your argument becomes an historical footnote.

yes, it's hypocrisy. But if there is an election, voters will again affirm all the individuals and parties who are hypocrites. As usual, it is left to the losing minority to kvetch about it.

The consequence of the constitution basically says that if the electorate are all fucking idiots and/or purely evil... we're stuck with it.

At 1:09 PM, Anonymous Anonymous said...

It's not really a question of negotiating at this point. It's a question of actually using power when you have it to achieve your objectives. The advantage that the GOP has is that it actually has an agenda. For years the party has been committed to overturning the New Deal and the Great Society. It wants to recreate the American state based on the old Confederate Constitution where a handful of wealthy slave owners exercised near total domination over the majority. It is doing so this time through a variety of legal maneuvers.

The problem that the Dems have is that there is no clear agenda other than just trying to preserve a dying political order. Obviously, a segment of the consulting and lobbying class are OK just so long as the money keeps flowing (win or lose). But there is no real agenda for building and maintaining power. These people still think everyone should show respect for norms that the other side long stopped respecting (because the opposition did the math and properly understood that the it needs to limit the franchise in order to survive).

One of the most hilarious parts in an otherwise sad saga, is that Trump's most loyal base, Evangelical voters, are probably going to get yet another far-right Catholic nominated to fill a vacancy. Forty years ago Evangelicals despised Catholics (I'm sure many still do). However, Trump clearly sees Evangelicals as too stupid and unqualified to actually occupy a life-tenure position on the Supreme Court. I guess they must agree with his assessment.

At 8:28 PM, Anonymous Anonymous said...

It seems to me that the democrap agenda is a negative one. they have nothing much they want to *DO*, except keep the $pigot$ wide open.

But the consequence of this, and thus their duty to their donor$, is their agenda. And it is largely negative -- DON'T do anything their voters want and need:
crush progressives and progressivism
never, ever intervene with useful idiots like trump when they also serve the same goals
don't undo anything DONE by anyone from Reagan to trump.

I've always known that being a democrap is much harder than being a Nazi. Nazis only need to appeal to hate and desire for power, at any cost.

But the democraps still need to have their 30% believe that they are still the party of FDR, unions, minorities and women... the working class... the poor, sick elderly and disabled. They must accomplish this all while whittling away everything the Democrats ever did for any of them.

Fortunately for the Nazis, the percentage of voters for whom hate is an ONLY issue is just a skosh more than the percentage of voters too fucking stupid to understand that their party hates them.

It leaves 40% with nothing and nobody to vote for.


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